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

[2020] AATA 4122

El Mokdad and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4122 (15 October 2020)

Division:GENERAL DIVISION

File Number:          2019/1730

Re:Ziad El Mokdad

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:15 October 2020

Place:Sydney

The decision under review is affirmed.

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

Mr S Evans, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – refuse to approve application – whether applicant has a permanent or enduring physical or mental incapacity – major depressive disorder – unable to learn English – where applicant successfully completed NSW drivers licence test – where applicant is carer of his children – where applicant has travelled overseas on numerous occasions – never attempted the citizenship test – decision under review affirmed

LEGISLATION

Administrative Appeals Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

SECONDARY MATERIALS

Citizenship Policy, 1 June 2016

REASONS FOR DECISION

Mr S Evans, Member

15 October 2020

1. Ziad El Mokdad applied for Australian citizenship and submits that he is unable to take the citizenship test owing to his mental illness.  A delegate of the Minister refused his application having determined that Mr El Mokdad does not meet the criteria to be exempt from undertaking the citizenship test.  Mr El Mokdad has appealed to the Tribunal for review of the delegate’s decision.

   INTRODUCTION

2. The applicant, Ziad El Mokdad (“Mr El Mokdad”), is a citizen of Lebanon who first arrived in Australia on 5 March 2013.  On 7 July 2014, Mr El Mokdad was granted a Subclass BC-100 (Permanent) visa. On 18 January 2018, Mr El Mokdad applied for Australian citizenship by conferral. In his application, Mr El Mokdad claimed to have ‘a permanent or enduring physical or mental incapacity’.

3. On 20 March 2019, a delegate of the Minister for Home Affairs[1] (“the Minister”) made a decision to refuse Mr El Mokdad’s application for Australian citizenship on the basis that the applicant did not meet paragraph 21(3)(d) of the Australian Citizenship Act 2007 (Cth) (“the Act”), namely that the applicant did not have a permanent or enduring physical or mental incapacity at the time of application.

   [1] The relevant Minister is now named the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

4. On 28 March 2019, Mr El Mokdad made an application for review of the decision to refuse his application for Australian citizenship to the General Division of the Administrative Appeals Tribunal (“the Tribunal”).

   Hearing

5. The matter was heard by the Tribunal on 10 July 2020. Mr El Mokdad, the representative for the Minister and Dr Banks appeared via videoconference in accordance with the COVID-19 Special Measures Practice Direction issued under section 18B of the Administrative Appeals Act 1975 (Cth). Mr El Mokdad represented himself and provided evidence under affirmation with the aid of an interpreter.

   LEGISLATIVE FRAMEWORK AND POLICY

6. Generally, a person is eligible to become an Australian citizen if they meet the criteria set out in subsection 21(2) of the Act, which relevantly states:

   (2)  A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   …

   (d)understands the nature of an application under subsection (1); and

   (e)possesses a basic knowledge of the English language; and

   (f)has an adequate knowledge of Australia and of the responsibilities and   privileges of Australian citizenship; …

7. In order to satisfy the requirements of paragraphs 21(2)(d), (e) and (f), a person is required to sit what is known as the ‘citizenship test’.

8. Paragraph 21(3)(d) of the Act provides an exemption for applicants who have a permanent or enduring physical or mental incapacity which would prevent them from completing the citizenship test and render them incapable of satisfying the requirements at the time of their application for citizenship.  

   Permanent or enduring physical or mental incapacity

   (3)  A person is eligible to become an Australian citizen if the Minister is satisfied 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; …

9. The Act does not define permanent or enduring physical or mental incapacity. The Citizenship Policy (“the Policy”) contains guidance for decision-makers in relation to subsection 21(3). Pages 72 to 73 of the Policy states:

   … 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.

   …

   Applicants claiming permanent or enduring physical incapacity must provide evidence from a specialist in the field they are claiming the incapacity, following referral from their General Practitioner.

   …

   Applicants claiming permanent or enduring mental incapacity may provide evidence from a:

   ·psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists or

   ·medical practitioner who is a fellow of the Australian Society of Psychological Medicine or

   ·psychologist 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.

   …

   It is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.[2]

   [2] Australian Citizenship Policy, pp. 72-73.

   ISSUES FOR THE TRIBUNAL

10. The issues for the Tribunal to determine are:

    (a)at the time of his citizenship application, did Mr El Mokdad have a medical condition which meant that he was not capable of understanding the nature of the citizenship application, or demonstrating a basic knowledge of the English language or an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and if so

    (b)is the condition permanent or enduring.

    EVIDENCE

11. In his application to the Tribunal, Mr El Mokdad writes that ‘[T]he Department has no right to refuse the doctors reference’. On 4 June 2019, Mr El Mokdad provided additional documentation in relation to his health which was accepted into evidence. 

    Evidence of Mr El Mokdad

12. Mr El Mokdad was born in Lebanon in 1973. He went to school for nine years and was taught in both Arabic and French.  He is able to read well but makes mistakes when writing.  Over time his French language skills have deteriorated due to lack of use.   

13. Prior to immigrating to Australia, Mr El Mokdad worked in manufacturing and selling gold.  He was employed at a factory which made products out of gold which he says he used to polish.  When he first arrived in Australia, he worked for a relative who did renovation work.  His relative was trying the help Mr El Mokdad settle into Australia and was ‘doing him a favour’.  At the time Mr El Mokdad was not coping psychologically and his relative offered him work to try and get him out of the house. Mr El Mokdad worked briefly in a job which he said involved taking children to and from school.   

14. When asked about his attempts to learn English, Mr El Mokdad told the Tribunal that he attended an institute for a ‘long time’ but found that he could not learn anything, no matter how much he studied.  He continued to study English for between four or five months until he was admitted to hospital.  Following his release from hospital he resumed his English studies but quit after a few months because he found he was not benefiting from his studies. 

15. Mr El Mokdad was recently separated from his wife and currently lives with his two young daughters, aged 16 and 12.  His wife and seven year old son no longer live with him.  He goes shopping for himself and his children but says his neighbour accompanies him.  Mr El Mokdad handles money himself, has a NSW drivers license and he drives and owns a vehicle.  If he needs to navigate to somewhere new, he requires that someone else program the destination in a GPS for him.  He explained that to obtain his NSW drivers license, he was required to sit the test approximately 20 times. 

16. Mr El Mokdad has travelled to Lebanon to visit his parents and some of his children who live there.  He told the Tribunal that he travels on an Arab speaking airline and his wife would take him to and from the airport. 

17. In his application for Australian citizenship Mr El Mokdad detailed some of his travel.  He reports having travelled to Thailand, Jordan, Syria, Bulgaria, Italy, Syria, the United States of America, Turkey and China in the period April 2009 through November 2012.  It is recorded that he travelled for both business and pleasure during this time. 

18. When asked about his three visits to Syria during that period, Mr El Mokdad told the Tribunal this travel was related to his ‘work in gold’.  He said he would go to a factory in Syria with a colleague and transport the gold to Lebanon by road.

19. Mr El Mokdad told the Tribunal that he applied for Australian citizenship because he was qualified to do so, he loves Australia and the medical care he receives here is very good.  He made his application with the assistance of a migration agent who had advised him that he may be exempt from taking the citizenship test. 

20. Mr El Mokdad told the Tribunal that his memory is very poor and he is required to write down everything he needs to remember.  In addition to his memory problems and poor mental health, Mr El Mokdad suffers from other health issues including diabetes and hepatitis. He told the Tribunal that he is 46 years old but ‘feels 100’.  Mr El Mokdad also stated that ever since he was a child, he had not been able to stay in a confined area for a long time without experiencing shortness of breath.

    Mr Hend Saab, psychologist

21. Mr Hend Saab is a psychologist at the St George Division of Mental Health, and he writes in a report dated 4 March 2016 that Mr El Mokdad was referred to the service in March 2015 following the ‘exacerbation of his depressive condition in the context of psychosocial issues’.  He confirms a primary diagnosis of ‘major depression with adjustment issues secondary to a severe trauma’.  Mr Saab opines that Mr El Mokdad’s mental health at the time was ‘clearly impacted by his difficult circumstances and the ongoing conflict at home’. 

    Mr Abdul Saad, clinical psychologist

22. Mr Abdul Saad is a clinical psychologist who writes on 17 January 2018 that Mr El Mokdad has been a patient of his since 7 February 2017.  He writes in part: 

    [Mr El Mokdad] was referred for psychological treatment by his general practitioner… He has a long history of major depressive disorder characterised by chronic low mood, tearfulness and poor self-care.  He also has a history of poor emotional regulation.  When highly distressed he has, in the past, attempted to self-harm by overdosing on prescription medication. [Mr El Mokdad’s] condition is complicated by a host of medical problems, including very poorly controlled type two diabetes.

    Dr Ashraf Philips, consultant psychiatrist

23. Dr Ashraf Philips is a consultant psychiatrist who has provided a report dated 26 October 2018 in which he confirms that Mr El Mokdad has been under his care since March 2018 following a referral from his general practitioner. Dr Philips writes that Mr El Mokdad has had mental health issues since a young age and described experiencing emotional instability and frequent suicidal thoughts.  In addition, Mr El Mokdad reported having ‘anger issues, spending sprees’ and ‘episodes of head-butting and nail biting.’

24. Dr Philips reports that Mr El Mokdad goes into episodes of severe depression characterised by disturbed sleep.  Mr El Mokdad is also being treated for diabetes and hepatitis as well as chronic neck and shoulder pain due to prolapsed discs.  Dr Philips confirms that Mr El Mokdad did not learn English in Lebanon and reports that he left school in year 9 having failed all subjects.  He reports that although Mr El Mokdad attended some language education in Australia he could not learn and stated that he could not read or write English and is reliant on others to interpret for him.  He concludes that Mr El Mokdad has poor mental abilities which would affect his ability to learn and retain information and writes ‘Mr El Mokdad suffers from chronic mental illness and is not capable of learning basic learning or understanding of the English language’. 

25. In a prior report dated 27 September 2018, Dr Philips observed in part: 

    Mr El-Mokdad continues to have episodes of severe depression, anger, emotional dysregulation…

    Mr El Mokdad is presenting with symptoms suggestive of a chronic depression and anxiety attacks on the background of personality vulnerability and below average intelligence. 

    Mr El Mokdad’s condition is permanent and has reached maximum improvement.  The condition is unlikely to change.

    Mr El Mokdad suffers from chronic mental illness and is not capable of learning basic learning or understanding of the English language. 

    His mental abilities are poor which would affect his ability to learn and retain information.  He is not able to demonstrate adequate knowledge of Australia and responsibilities and privileges of Australian Citizenship.

    Report of Dr Gary Banks, consultant clinical psychologist

26. On 6 February 2020, Mr El Mokdad was examined by clinical psychologist Dr Gary Banks following referral by the Respondent.  Dr Banks observed Mr El Mokdad over a six-hour period during which he administered cognitive and psychological tests.  Mr El Mokdad was assisted by an interpreter during his time with Dr Banks.  Dr Banks subsequently produced a report for the purposes of Mr El Mokdad’s application before the Tribunal and appeared by video link to provide evidence and answer questions at the hearing. 

27. Dr Banks writes that throughout the interview Mr El Mokdad appeared to be evasive in his responding.  He observed that during questioning Mr El Mokdad would provide simple answers that appeared to minimise his personal history even when it would contradict Mr El Mokdad’s own presented material. 

28. He reports that Mr El Mokdad has a complex medical and psychiatric history and reports that he was a regular user of drugs until age 34 and ceased using alcohol four years ago. 

29. Having performed a visual recognition memory test, Dr Banks concludes that Mr El Mokdad’s results indicate ‘sub-optimal effort and motivation’ and that there was a high likelihood that Mr El Mokdad was intentionally seeking to exaggerate his memory impairments.  He notes that in performing tests to assess cognitive ability, Mr El Mokdad initially tried but as the difficulty of the task increased, his perseverance waned.  He concludes that Mr El Mokdad demonstrated a reasonable ability to learn, retain and subsequently recall a number of the rights and privileges of Australian citizenship.

30. Dr Banks reports that Mr El Mokdad had a fixed focus that he could not remember things and this belief dominated throughout both the interview and assessment with resistance often shown.  He writes:

    it was apparent that for prolonged periods of his life Mr El Mokdad has been able to effectively manage himself and his family such as undertaking multiple international holidays and business trips.  Additionally, he has been able to arrange to have two of his daughters moved to Sydney from Lebanon to live with him.

31. Dr Banks opines that whilst Mr Saad and Dr Philips both conclude a plausible diagnosis of major or severe depression:

    the proposition that such a diagnosis has been subjected to structured evidence-based best practice therapy does not appear to have occurred, rather that Mr El Mokdad has engaged sporadically with both clinicians. 

32. Dr Banks stated that there does not appear to have been a concerted effort to engage Mr El Mokdad in ongoing, structured therapy.  There is also limited detail regarding formal assessment of his condition beyond an initial subjective symptom rating inventory.  Dr Banks concludes that his view, formed on the basis of supplied documentation, information attained at the interview and cognitive testing with Mr El Mokdad, is that Mr El Mokdad does not appear to be suffering from a permanent or enduring physical or mental incapacity, nor have been suffering from such a condition that would mean he is not capable of demonstrating a basic knowledge of the English language. 

    CONSIDERATION

33. As set out in the Policy, Mr El Mokdad is required to produce evidence from an appropriately qualified medical practitioner that he has a permanent or enduring physical or mental incapacity that means he is not capable of understanding the nature of his application for citizenship, or demonstrating a basic knowledge of the English language, or demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship. 

34. Mr El Mokdad submits that he has a mental condition that is permanent and enduring and renders him not capable of demonstrating a basic knowledge of the English language.   

35. Both Mr Saad and Dr Philips meet the qualification requirement set out in the Policy as they are specialists in the field of his claimed medical condition.  It is not in question that Mr El Mokdad has a mental health condition requiring him to take medication and seek psychiatric and psychological care.  Whilst Mr Saab, Mr Saad and Dr Philips all state that Mr El Mokdad has or is being treated for major depression, there is no detail before the Tribunal as to any clinical testing that has been completed to determine such a diagnosis.  Based on the reports from Mr Saab, Mr Saad and Dr Philips and the evidence that Mr El Mokdad is regularly seeking psychiatric and psychological care, I am satisfied that Mr El Mokdad is suffering from severe depression. 

36. The Policy also requires that Mr El Mokdad’s incapacity ‘must be the direct cause of the applicant not being capable of fulfilling the requirements’.  During the hearing, Mr El Mokdad argued that his ‘problem’ was that he could not remember things.  However, there is no evidence which supports the proposition that Mr El Mokdad’s depression impacts his ability to retain information. 

37. The Policy anticipates that an applicant who claims a permanent or enduring incapacity must be seeing a specialist on a regular basis.  Dr Philips has provided two reports which support Mr El Mokdad’s argument that he has a permanent or enduring physical or mental incapacity.  Whilst Dr Philips reports that he has undertaken 10 consultations with Mr El Mokdad in the period October 2018 to September 2019, four of these consultations were undertaken in the seven month period between March 2018 and 26 October 2018 with the remaining six consultations being undertaken in the 11 month period between 26 October 2018 and 27 September 2019.  It is submitted by the Respondent that on the basis of such irregular consultations the Tribunal cannot be satisfied that Mr El Mokdad has been engaging in regular treatment for his mental health conditions. In considering Mr El Mokdad’s medical history, I make allowance for the time which Mr El Mokdad is required to spend managing his competing health conditions and do not consider that his treatment schedule indicates he is not seeing a specialist on a regular basis. 

1. Dr Banks observed that Mr El Mokdad’s responses to the cognitive testing administered by Mr Saad indicate that there were no gross signs of cognitive impairment.  The Respondent contends that this observation should be given weight by the Tribunal.  It is also submitted that Dr Philips has not provided a basis for his assertion that Mr El Mokdad is not capable of learning or demonstrating a basic understanding of the English language.  The Respondent contends that consequently the reports of Dr Philips should be given considerably less weight than the report of Dr Banks.

2. In considering the totality of the evidence, I am not satisfied that there is sufficient medical evidence to support a finding that Mr El Mokdad satisfies the requirements of paragraph 21(3)(d) of the Act.  Whilst his diagnosis of depression is accepted, Mr El Modad told the Tribunal that he was unable to take the citizenship test because he finds it difficult to remember new information and hence cannot learn English.  Whilst the evidence establishes that Mr El Mokdad suffers from severe depression, there is a dearth of evidence with demonstrates he has problems associated with his memory or cognitive impairment. Dr Banks observed in Mr El Mokdad a reasonable ability to learn, retain and recall information.  He noted that he was able to recall a number of rights and privileges of Australian citizenship but concluded that Mr El Mokdad was seeking to exaggerate his poor memory after he scored poorer than a dementia patient was likely to on one of the tests that was administered.  Dr Banks also submitted that Mr El Mokdad has high executive function and is able to manage his everyday life.  I placed significant weight on the findings of Dr Banks because his conclusions were reached following assessment using standard cognitive tests which were relevant to considering Mr El Mokdad’s intellectual ability, verbal learning and memory and comprehension.

3. I am cognisant that Mr El Mokdad’s personal circumstances indicate a degree of self-autonomy and capability which is incongruent with his stated incapacity.  He currently lives with, and cares for, his two daughters from his first marriage. He has been able to obtain a NSW drivers license.  Whilst the test was in Arabic, I accept that his successful completion of the test indicates he has an ability to learn and retain new information. I accept Dr Banks’s observation that ‘Mr El Mokdad was evidently motivated to persist for a considerable period to obtain his drivers licence’. 

4. As referenced above, Mr El Mokdad has also travelled overseas extensively and done so independently on occasion.  He attended school until he was 15 and attended English classes in 2013 for 12 months but had not completed any courses since. 

5. During the hearing Mr El Mokdad was afforded an opportunity to ask questions of Dr Banks.  In questioning Dr Banks, Mr El Mokdad argued that his ability to undertake daily activities  does not undermine the veracity of his claimed memory problems.  In the process of doing so he recalled conversations that he had had with Dr Banks during the session with him in February.  This questioning demonstrated a capacity to recall information and form complex arguments which is inconsistent with his stated incapacity. 

   CONCLUSION

6. In view of the comprehensive and credible testing undertaken by Dr Banks in the context of the evidence as outlined, I am not satisfied that Mr El Mokdad had a permanent or enduring mental incapacity at the date of his citizenship application, such that he meets the  requirements of paragraph 21(3)(d) of the Act entitling him to an exemption from the citizenship test. 

   DECISION

7. The decision of the delegate of the Minister dated 20 March 2019 to refuse Mr El Mokdad’s application for Australian citizenship by conferral is affirmed.   

I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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Associate

Dated: 14 October 2020

Date of hearing:	10 July 2020
Applicant:	Self-represented
Solicitor for the Respondent:	Ms Qi Qi Ren, Australian Government Solicitor