Fettayleh and Minister for Immigration and Border Protection (Citizenship)

[2019] AATA 397

Fettayleh and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 397 (14 March 2019)

Division:GENERAL DIVISION

File Number(s):      2017/7138

Re:Maher Fettayleh

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:14 March 2019

Place:Sydney

The decision under review is affirmed.

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

Chris Puplick AM, Senior Member

CATCHWORDS

CITIZENSHIP – citizenship test exemption – whether the applicant suffered from a permanent or enduring physical or mental incapacity – decision affirmed

LEGISLATION

Australian Citizenship Act 2007

Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009

CASES

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

Butrus v Minister for Immigration and Border Protection [2019] AATA 239

Hamid v Minister for Home Affairs (Administrative Appeals Tribunal, Chris Puplick AM, Senior Member, 13 March 2019)

Skaf v Minister for Immigration and Border Protection (Citizenship) [2016] AATA 429

SECONDARY MATERIALS

Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016

Determination for the Approval of Citizenship Test (Section 23A) IMMI 11/088 made by the Minister on 1 March 2012, effective 24 March 2012

Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5) (American Psychiatric Association, Washington, D.C., 2013

REASONS FOR DECISION

Chris Puplick AM, Senior Member

14 March 2019

1. Mr Maher Fettayleh (the Applicant) appeals to this Tribunal against a decision made by a delegate of the Minister for Home Affairs (the Respondent) to refuse his application for citizenship by conferral.

2. Citizenship by conferral (that is where citizenship is granted to a person who does not have an automatic or statutory entitlement to citizenship) may be granted where an applicant satisfies certain requirements of the Australian Citizenship Act 2007 (the Act). One of those requirements is that the Applicant sits for and passes the citizenship test. However, if an applicant has “an enduring physical or mental incapacity” which is of such a nature that they cannot undertake the citizenship test, then they may be granted citizenship, all other things being equal and all other requirements being satisfied, without so doing.

3. It is on this basis that the Applicant comes before the Tribunal seeking to have the Minister’s decision set aside.

   APPLICANT’S CIRCUMSTANCES

4. The Applicant was born in Tripoli, Lebanon, in 1981. He first arrived in Australia in November 2006 and in October 2012 was granted a Permanent Resident visa (subclass 801).

5. The Applicant is one of six siblings and grew up with them and his parents in a village near Tripoli. He completed a limited amount of schooling in Lebanon[1] and also completed his military service at age 18. In Lebanon he worked as a panel beater and undertook windscreen repair work.

   [1] Mr Girgis, one of the Applicant’s treating psychologists states that the Applicant was at school in Lebanon “up to year five”, Section 37 T Documents at [14].

6. He first visited Australia on a tourist visa, having been brought here by his uncle. Together they returned on two separate occasions.

7. One of his sisters suffered from major spinal problems and she, together with the Applicant and their parents resided in Australia for some five years where she underwent spinal surgery. His parents and sister all returned to Lebanon after failing in their applications for permanent residency.

8. In 2010[2] the Applicant married Ms Simha Hadid and together they have four children all now under the age of 10 years. The elder children attend school. Ms Hamid is fluent in English.

   [2] The date is given as 2006 in the report of Dr Gary Banks, Section 37 Tribunal Documents at [12] but as 2010 in testimony from Ms Hadid.

9. The Applicant apparently works five days a week in a butchery owned by his uncle.  He holds a NSW Drivers’ Licence and also a Personal Watercraft Licence (PWC).

10. Details of his medical history will be discussed below.

    DETAILS OF APPLICATION

11. The Applicant lodged an application for citizenship by conferral on 29 September 2015 and this was refused by a delegate of the Minister’s on 8 November 2017. The Applicant then appealed that decision to this Tribunal on 1 December 2017. The matter was heard in the Tribunal on 11 March 2019 with the Applicant appearing in person with the assistance of an Arabic language interpreter and with the assistance of his wife, an Australian citizen who speaks fluent English.

    THE LEGISLATIVE FRAMEWORK

12. Claims such as this are dealt with under the provisions of s 21 of the Act which is set out below.

    AUSTRALIAN CITIZENSHIP ACT 2007 - SECT 21

    Application and eligibility for citizenship

    (1)  A person may make an application to the Minister to become an Australian citizen.

    General eligibility

    (2)  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)  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; and

    (g)  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

    (h)  is of good character at the time of the Minister's decision on the application.

    (2A)  Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:

    (a)  the person has sat a test approved in a determination under section 23A;

    (b)  the person was eligible to sit that test (worked out in accordance with that determination);

    (c)  the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period ) worked out in accordance with that determination;

    (d)  the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.

    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:

    (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.

13. In short, the system is such that:

    (a)A person may make an application for citizenship and, under s 24(1) of the Act the Minister must make a decision to grant or not grant that application. The Minister is obliged to make a decision and has no power to defer such decision-making.[3]

    (b)In order for an application to be granted, an applicant must satisfy all of the 8 requirements that are listed in s 21(2);

    (c)Subsections (d), (e) and (f) of s 21(2) can only be satisfied if the applicant understands the nature of their application, possesses a basic knowledge of the English language and has an adequate knowledge of the responsibilities and privileges of citizenship;

    (d)This is established by the applicant having to undertake and pass the citizenship test established by s 21 (2A). Ministerial Determination (Instrument) 11/088 provides that: “There is no limit to the number of times a person can sit a Standard Test in order to successfully complete the test unless a person has commenced a Course-Based Test.”[4];

    (e)However, if the Minister is satisfied that an applicant cannot meet the requirements of ss 21(2)(d),(e) or (f) due to having “a permanent or enduring physical or mental incapacity, at the time the person made the application” and is otherwise likely to reside, remain or maintain a close relationship with Australia and is of good character, then the Minister may proceed to grant the citizenship application.

    [3] The Australian Citizenship Instructions state: 39.2 Deferral of decision not possible: “Under s14 and s14A of the old Act, it was possible to defer a decision on an application under certain circumstances. The new Act does not allow for the deferral of decisions.”

    [4] Determination for the Approval of Citizenship Test (Section 23A) IMMI 11/088 made by the Minister on 1 March 2012, effective 24 March 2012.

14. More generally, the provisions of this section and its operations were outlined by Senior Member Taylor SC  in Khodeir:

    [2]  Ordinarily a person’s eligibility for Australian citizenship depends on satisfaction that they meet each of the eight cumulative criteria set out in s 21(2) of the Australian Citizenship Act 2007…… I paraphrase those three matters as

    (a) AWARENESS: — understanding the nature of the citizenship application:

    (b) ENGLISH: — possessing a basic knowledge of the English language;

    (c) KNOWLEDGE: — having an adequate knowledge of Australia and of the responsibility and privileges of Australian citizenship.

    [3] As a result of recommendations of the Australian Citizenship Test Review Committee, and amendments effected first by the Migration Legislation Amendment Act (No 1) 2008 (Cth) and subsequently by the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth), those three ordinary eligibility criteria may not apply where a citizenship applicant has a significant incapacity (either physical or mental, and either permanent or enduring). In such a case the person is eligible for citizenship if they both (i) comply with the five other ordinary eligibility criteria in ACA 2007 s 21(2) and (ii) satisfy the Minister that, because of their incapacity, when they applied for citizenship they were not capable of satisfying any one of the other three ordinary criteria (ie “awareness“, “English“ and “knowledge”).[5]

    [5] Atef Khodeir and Minister for Immigration and Border Protection, [2015] AATA 499.

15. This Tribunal has set out the legislative history of section 21(3)(d) in its determination in Butrus[6] and this need not be repeated here, other than to indicate that the current form of the legislation was effected by passage of the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 and this in turn led to the adoption of policy guidelines indicating how decision-makers should approach claims made under this section.

    [6] Butrus v Minister for Immigration and Border Protection [2019] AATA 239 at [25]-[30].

16. They are found in the  Australian Citizenship Policy which states:

    “For applications received on or after 9 November 2009 for consideration under s21(3) applicants must produce evidence, from a qualified medical practitioner, of a permanent or enduring physical or mental incapacity that means the person is not capable of:

    ·understanding the nature of their application

    ·demonstrating a basic knowledge of the English language or

    ·demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.

    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.” [7]

    [7] Australian Citizenship Policy at [71]-[74].

17. Thus, in order to meet the criteria under the Act, an applicant must have a “permanent or enduring mental incapacity” which results in an applicant not being able to understand the nature of their citizen application, acquiring basic English language competency or being able to understand the responsibilities and privileges of citizenship.

18. In order to demonstrate this, the applicant must, in line with the Citizenship Policy, produce evidence from a qualified medical practitioner which shows that the enduring incapacity is one for which there can be no predictable recovery, or where that recovery would not reasonably be expected to take place before the applicant becomes otherwise eligible for a grant of citizenship.

19. If those conditions are satisfied, then “s 21(3) operates to exempt persons who satisfy the provision from being required to pass the citizenship test.”[8]

    [8] Skaf v Minister for Immigration and Border Protection (Citizenship) [2016] AATA 429 at [7].

    THE CITIZENSHIP TEST

20. This application is significantly different from those which come before the Tribunal where applicants have actually sat for, and failed, the citizenship test and then apply to the Tribunal as per the provisions of s 21(3)(d) to have the test requirement waived on the grounds of their “enduring physical or mental incapacity”.

21. In this instance the Applicant claims that his “enduring physical or mental incapacity” is such that he should not be required to undertake the citizenship test at first instance. This claim was made in his original citizenship application dated 27 September 2015.[9]

    [9] Section 37 Tribunal Documents at [3].

22. In order to assess this claim it is necessary to outline the provisions and processes of the citizenship test.

23. Section 23A of the Act sets out details of the citizenship test. It requires those undertaking the test to be permanent residents (s 23A (4)), that the Minister make a determination about what constitutes passing the test (s 23A(2)) and the time limits within which the test must be completed (s 23A(5A)).

24. Passing the citizenship test is an integral requirement for the consideration of grant of citizenship. The test is designed to establish that an applicant both understands what citizenship is all about and what their application actually means. It also establishes a basic requirement in regard to competency in the English language.

25. There are actually several versions of the test. The Standard Test is simply computer-based. The Assisted Test is available for persons with low literacy skills and is conducted on the computer but with the assistance of a test administrator. The Course-Based Test was used for those who have failed the Standard or Assisted Test on three or more occasions and involved a detailed tuition programme[10].

    [10] The Course-Based Test is no longer offered by the Department and has not been available since mid-2017.

26. The Instrument to which reference has already been made provides that a score of 75% is required and this minimum threshold cannot be varied.[11] This arrangement has been in place since the Instrument was made in March 2012.

    [11] Determination for the Approval of Citizenship Test (Section 23A) IMMI 11/088 at [10], [26], [43)(iii)].

    THE MEDICAL EVIDENCE

27. The Applicant submitted several medical reports to the Tribunal.

28. Mr Emad Girgis (a clinical psychologist) submitted a report dated 2 March 2015[12] in which he reported seeing the Applicant for assessment and thereafter providing continued clinical support. In that report Mr Girgis makes a diagnosis of a mood disorder “classified as Adjustment Disorder with Depression mood and Anxiety.” He references the Applicant’s level of stress resulting from his support of his own immediate family and that of his parents and sister, then in Australia on bridging visas. His conclusions are that:

    ·“As he, cares for two families, has minimal educational background and suffers from mood disorder, he would not be able to learn and understand the content of the English language.”

    ·“His psychological problems along with his social circumstances will also disadvantage hin in sitting for the English test. My Fettayleh does not have the mental capacity needed to study and pass the English test.”

    ·“Mr Fettayleh is therefore incapable of demonstrating a basic knowledge of the English language and incapable of demonstrating adequate information needed to pass the English exam due to his enduring mental incapacity.”

    [12] Section 37 Tribunal Documents at [13]-[15].

29. Mr Girgis’ conclusion that the Applicant has an “enduring mental incapacity” (in the words of the statute) was attacked by the Respondent in their submission on the basis that there appeared to be no clinical evidence provided in support of this diagnosis and that further, such a diagnoses was not linked in any way to the adjustment disorder finding.

30. The latter point of criticism seems, to the Tribunal, ill-founded in that the two findings need not be linked in order to satisfy the requirements of the Act. They can stand separately.  The former criticism is more to the point and it is unfortunate that when contacted for further details, Mr Girgis replied on 2 May 2018 to the effect that, although he had apparently seen the Applicant at same stage, his practice held no records of any consultations or diagnoses as a result of physical relocation of his practice and changes in practice software. This report states further that the Applicant was referred to “Ms Ziena Allow” (sic) for further management.[13]

    [13] Section 37 Tribunal Documents at [61].

31. Ms Zeinab Allaw (a clinical and forensic psychologist) saw the Applicant on a number of occasions. Her report is dated 14 May 2018. She reports that on initial assessment, the Applicant:

    ·“did not present any memory deficits. He did not present with any psychomotor abnormalities. He did not report suicidal ideations, delusions, nor persecutory ideas. He thought process was goal-directed. His judgment was sound.”

    ·“Mr Fettayleh reported the following symptoms: low mood, anxiety, irritability, insomnia, anhedonia, fatigue, lack of self-confidence, excessive worry, lack of concentration and motivation.”

1. Ms Allaw also reported that the Applicant was concerned about the then current situation of his family who were seeking permanent residency and treatment for his sister (see above). Her report goes on to detail similar conclusions and assessments on subsequent visits and she makes a diagnosis, finding that the Applicant suffers from “Adjustment Disorder with features of Depression.”[14]

   [14] Section 37 Tribunal Documents: Medical Records and Reports at [24]-[27].

2. In an earlier report, dated 18 August 2017 Ms Allaw assessed the Applicant as suffering from “Anxious Personality Disorder” and noted that he was undertaking cognitive behaviour therapy (CBT) to improve his low self-esteem. She concluded,

   “Mr Fettayleh is an illiterate male who is unable to learn a new language and his no ability to write or read even in his native language. Anticipation of sitting the citizenship test has exacerbated Mr Fettayleh’s symptoms as he is aware of his academic limitations and inability to learn a new language. …. In my opinion, Mr Fettayleh is not fit to take the English test necessary for Australian Citizenship as he lacks the ability to perform such a task.”[15]

   [15] Ibid  at [30]-[31].

3. The May 2018 report is couched in much more positive terms than that of August 2017 and indicates some progress through the designated programme of CBT and “psych-education”.[16]

   [16] Ibid at [31].

4. A later report of 10 October 2018 restated a diagnosis of “Adjustment disorder with low mood and anxiety” which was being addressed through a programme of CBT in which the Applicant was apparently an active and frequent participant and where some signs of progress can be assumed from the text of the report.[17]

   [17] Zeinab Allaw report Re Mr Maher Fettayleh dated 10 October 2018 submitted by the Applicant.

5. Dr A Selim (a general practitioner) was consulted by the Applicant on a number of occasions as his regular general practitioner, commencing in May 2016.[18] He formed the view that the Applicant was suffering from “depression and stress disorder” and prepared a mental health plan for him.[19]

   [18] Ibid at

   [19] Ibid at [28]. Report of 12 August 2017.

6. Dr Gary Banks is an exceptionally well credentialed consultant clinical psychologist who has prepared numerous reports touching upon the competence of individuals to sit for the citizenship test. He has appeared on numerous occasions before this Tribunal and in Court as an expert witness and his testimony or reports have been cited well over a dozen times by courts and tribunals.

7. His report was obtained by the Respondent which provided him with the assessments of Mr Girgis and Ms Allaw and invited his comments on them.

8. Dr Banks commented negatively upon both reports and assessments. In relation to Mr Girgis, Dr Banks cited a lack of clarity about what tests might have been used in making his diagnosis and the subsequent absence of any clinical notes to support such a diagnosis.

9. In relation to Ms Allaw, Dr Banks notes that the diagnosis of “anxious personality disorder” does not appear anywhere in the DSM-V[20] categorisations nor in standard definitions of recognised personality disorders.[21]

   [20] Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5) (American Psychiatric Association, Washington, D.C., 2013.

   [21] Tribunal Documents” Medical Records and Reports at [12].

10. In terms of his own assessment of Mr Fettayleh, he reaches conclusions which are diametrically opposed to those of either Mr Girgis or Ms Allaw. He concludes, with specific reference to the matters set out in the legislation that Mr Fettayleh

    “does not appear to be suffering from a permanent or enduring mental of physical incapacity, not have been suffering from such a condition that would meant that he is current incapable of

    a)    understanding the nature of his application;

    b)    Demonstrating a basiss knowledge of the English language; or

    c)    Demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.”

11. Dr Banks’ findings are based upon a detailed analysis of a series of tests which were administered to the Applicant over a four hour session in which he reported that the Applicant participated “without any difficulties with attention and fatigue.”[22] In relation to a number of the tests, Dr Banks makes it clear that he believes that the Applicant’s results were:

    “compromised by his desire to perform poorly in the interests of returning results consistent with an individual who has cognitive deficits rather than reflecting a true assessment of his cognitive capabilities, or an individual with identifiably cognitive deficits”[23]

    and that

    “his motivation to perform was so poor as to prevent a valid determination of his actual abilities being derived.”[24]

    [22] Ibid  at [21] paragraph 38.

    [23] Idem.

    [24] Tribunal Documents” Medical Records and Reports at [21] paragraph 39.

12. In effect, Dr Banks suggests that the Applicant was deliberately “malingering”[25] and that he “may have considerably greater cognitive capacity than he was willing to admit.”[26]

    [25] Ibid at [18] paragraph 30.

    [26] Ibid  at [21] paragraph 39.

13. There are a number of aspects of Dr Banks’ report which are of concern to the Tribunal:

    (a)While Dr Banks’ reported that the Applicant was able to pay attention during his four hour session, in the Tribunal itself, the Applicant exhibited an inability to pay attention, concentrate or follow with any degree of engagement any of the procedures over a two hour hearing;

    (b)Dr Banks describes the Applicant’s work environment as one in which he has “demonstrated a reliable capacity to learn various cuts of meat at the butchery and sustain an ongoing productive employment role within what would be considered a relatively dynamic work environment with considerable variation of activities on a daily basis.”[27] In his sworn evidence, under cross-examination by the Respondent, the Applicant said that his only role at the butchery was to “fill a bucket with soap and water and wash everything”, that he was not allowed to work with the meat itself or touch knives and that his only chore, every day, was to fetch and carry things as directed.

    (c)Dr Banks also relies on the fact that the Applicant has both a NSW Drivers Licence and a PWC licence which allows him to operate powered water-craft.[28] Again in evidence the Applicant put to the Tribunal that all the paper-work in these applications was completed by other persons and that he only got through the driving tests because instructors used hand gestures which he understood.

    (d)Dr Banks makes a great deal of the Applicant’s apparent ability to use a mobile phone, to respond to messages and make use of various installed ‘apps’.[29] In evidence to the Tribunal, the Applicant’s wife (Ms Hadid) stated that the phone in question was hers; she had given it to the Applicant just before the interview with Dr Banks and that the messages at which he looked were just from her by way of encouragement. The Applicant told the Tribunal he only operates his own phone, which he cannot manage properly, by pressing buttons attached to pictures of a family member or friend.

    [27] Ibid at [19] paragraph 32.

    [28] Ibid at [15] paragraph 16.

    [29] Ibid at [16] paragraph 24.

    TRIBUNAL EVIDENCE

14. The Applicant gave evidence after taking an Affirmation. He was given the opportunity by the Tribunal to take an oath on the Holy Qu’ran but expressed no preference for doing that rather than affirming. However, in his concluding statement to the Tribunal he made a point of stressing how important his Muslim faith was to him and the extent to which he felt embarrassed at not being able to learn it (or passages of it) by heart because of his memory problems.

15. These memory problems figured prominently in his testimony. The Applicant could not remember (or recall) such matters as the ages of his children, his address, the fact that he had undertaken a long interview with Dr Banks or many other matters of detail. By contrast he spoke of vivid memories of traumatic events such as when his father lost part of his leg in a workplace accident when the Applicant was a child in Lebanon or the near drowning of his baby daughter in a shared swimming pool.

16. It was established that the Applicant had attempted some participation in English language course but that he found himself unable to learn because he could not remember things and this level of short-term memory problem also caused arguments with his wife and others.

17. The Tribunal however recalls the report of Ms Allaw to the effect that the Applicant presented in her examination with no memory deficits; with goal-directed thought processes and sound judgement. There is no evidence before the Tribunal of any collapse in these capacities since May 2018.

18. The Applicant told the Tribunal that he communicates with his children on the basis of some sort of broken Arabic as each of the elder children (approximately seven and six years of age) go to Arabic school after their regular schooling sessions.

19. In describing his work environment the Applicant noted that he was not required to learn anything specific, and that while he occasionally drove there from his nearby home, he did not drive anywhere where he had to navigate an unknown route. He does not use public transport.

20. The Applicant based his desire for citizenship to be “for his children” and because it is inconvenient when they travel for his wife and children to be on Australian passports and himself on a Lebanese passport. Over and above that, his desire to become an Australian citizen was based on the fact that he had lived here many years and he “loves this country and its law and order.”

    CONSIDERATIONS

21. In the first instance the Tribunal is deeply concerned about significant differences in what the Applicant has told the Tribunal compared with what he obviously told Dr Banks. The Tribunal takes Dr Banks’ report as an accurate report of what he was told by the Applicant. Either the Tribunal or Dr Banks have been given inaccurate, partial or misleading information.

22. In weighing the professional opinions before the Tribunal the Respondent asks the Tribunal to give greater weight to that of Dr Banks (compared with Mr Girgis and Ms Allaw) on the basis that it represents a more structured and empirical assessment directed specifically towards the criteria laid down in the legislation. For these very reasons the Tribunal is inclined to do so. Nothing presented to the Tribunal served to undermine the findings of Dr Banks’ reports nor the conclusions which he advances within it. A copy of the report was supplied to the Applicant who indicated that they intended to submit no further or additional material after having studied its contents.[30]

    [30] Respondent’s Statement of Facts, Issues and Contentions at [25].

23. The relevant section of the Act refers, in Senior Member Taylor’s characterisation, to “awareness, English and knowledge.”[31] Each is a separate category and failure to be able to address any one of them allows an Applicant to move forward with their claim to be exempt from the Citizenship Test. Mr Fettayleh demonstrates some appreciation of the awareness and knowledge components of this characterisation and so prosecutes his application on the basis of his inability to learn English. To qualify under the Act, that inability must be based upon a mental incapacity that is enduring.

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

24. The Applicant is 37 years of age – he is still a young man. There is no evidence before the Tribunal to the effect that the Applicant is of such low intelligence that he cannot fulfill the responsibilities of parenthood; attend the mosque; hold down a regular job; drive a car or otherwise function normally. It is accepted that he is illiterate, although in answer to a question from the Tribunal he said that he recognised “the numbers” on things like speed signs on the road.

25. Dr Banks’ findings suggest that it is lack of motivation which underlies the Applicant’s current position and Ms Allaw’s reports suggest that the programme of CBT is helping the Applicant to make progress with his feelings of depression and lack of self-worth.

26. There is no reason to believe that the motivation of being able to communicate effectively with his four children (and in time, prospective grandchildren) and the fact that he has a supportive wife who is utterly fluent in English will not help to turn round this lack of motivation.

27. The Applicant has friends who have helped him with the completion of forms to obtain his various licenses and have helped him to pass some of the associated tests. There is no evidence that his workmates (and family proprietors) do not speak English.

28. Of course, if there is one thing that the Applicant could do to make sure that he has the closest relationship with his children,[32] it might be to work with them and use them as a resource to help him learn English while strengthening the bonds between them in terms of shared communications. At present the Applicant says that he avoids talking to his son about his schooling because, according to Dr Banks’ report his son “is likely to respond to him in English.”[33] There is an opportunity for the Applicant to overcome this reticence by engaging in positive steps to learn at least enough English as to be able to take a meaningful interest and role in his children’s education.

    [32] The Tribunal has referred to a similar situation in Hamid v Minister for Home Affairs (Administrative Appeals Tribunal, Chris Puplick AM, Senior Member, 13 March 2019).

    [33] Tribunal Documents” Medical Records and Reports at [14], paragraph 12.

29. There are numerous programmes of support for people who wish to learn English, not only those focused upon preparation for the Citizenship Test itself. Dr Banks’ suggestion that the Applicant might address himself to the 400 hours of supervised language classes required to apply for the Assisted Citizenship Test does not seem a viable option to the Tribunal and although the Course-base test is no longer available, this means that in due course, with the use of information available in the Arabic language and the assistance of his wife and children, there is nothing in the evidence before the Tribunal to suggest that at some stage in the future the Applicant would not be able to sit for and pass the standard Citizenship Test.

30. It is very much up to him.

    DECISION

31. The decision under review is affirmed.

I certify that the preceding 62 (sixty -two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Associate

Dated: 14 March 2019

Date(s) of hearing:	11 March 2019
Applicant:	In person
Solicitors for the Respondent:	Mr J Hutton, Australian Government Solicitor