Haidari and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 128
•3 March 2016
Haidari and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 128 (3 March 2016)
Division
GENERAL DIVISION
File Number(s)
2015/1325
Re
Sayed Hussain Haidari
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member
Date 3 March 2016 Place Sydney The decision under review is affirmed.
..........................[sgd]..............................................
Professor R McCallum AO, Member
CATCHWORDS
CITIZENSHIP – eligibility – whether applicant satisfied the awareness, English and knowledge criteria for Australian citizenship – whether the applicant was suffering from a permanent or enduring physical or mental incapacity – Tribunal not satisfied that applicants limited English language abilities a result of mental incapacity – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) Legislation 21(3)(d)
CASES
Khodeir and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 499
REASONS FOR DECISION
Professor R McCallum AO, Member
3 March 2016
INTRODUCTION
The Applicant, Mr Sayed Hussain Shah Haidari, was born in Afghanistan. He fled that country and arrived in Australia on 4 January 2010 as a refugee. On 12 April 2010, Mr Haidari was granted a subclass XA866 protection visa which entitles him to reside in Australia permanently.
Mr Haidari's wife also fled Afghanistan, and she and their eight children currently reside in Pakistan.
On 1 August 2014, Mr Haidari applied for Australian citizenship by conferral. In his application, he relied upon s 21(3)(d) with of the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”). Subsection 21(3) provides as follows.
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.
On 17 March 2015, a delegate of the Minister refused Mr Haidari's application for Australian citizenship. The delegate was not satisfied that Mr Haidari met the requirements set out in s 21(3)(d).
In other words, the delegate was not satisfied that at the time Mr Haidari applied for Australian citizenship, he suffered from a "permanent or enduring physical or mental incapacity" that resulted in his inability to meet the other requirements of s 21(3)(d) of the Citizenship Act’).
In Khodeir and Minister for Immigration and Border Protection [2015] AATA 499, Senior Member Mr P W Taylor SC helpfully unpacks s 21(3)(d) of the Citizenship Act in paragraphs 2 and 3 of his decision as follows.
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 (Cth) (“ACA 2007”). Those criteria include three matters of particular relevance to [the application before the Senior Member]. I paraphrase those three matters as
(a) AWARENESS:- understanding the nature of the citizenship application:- ACA 2007 s 21(2)(d)
(b) ENGLISH:- possessing a basic knowledge of the English language:- ACA 2007 s 21(2)(e)
(c) KNOWLEDGE:- having an adequate knowledge of Australia and of the responsibility and privileges of Australian citizenship:- ACA 2007 s 21(2)(f).
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”): see - ACA 2007 s 21(3)(d) and the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill Explanatory Memorandum Item 27.
Mr Haidari now appeals to this Tribunal.
THE MEDICAL REPORTS
In support of his application for Australian citizenship by conferral, Mr Haidari relied upon a report from Dr Reza Pishyar dated 25 July 2014. In this brief report, Dr Pishyar wrote that "Mr Haidari suffers from major depression and anxiety disorder."
A letter from the Minister which was given to Mr Haidari, sought further information. Dr Pishyar responded with a further brief report which was dated 24 March 2015, but was most probably written on or about 24 July 2015 as the Minister received this letter on 28 July 2015. The material parts of Dr Pishyar's letter read as follows.
Mr. Sayed hussain shah Haidari was referred on 12/06/2014 by his family doctor for an initial psychological assessment and treatment under Medicare Initiative Mental Health Care Plan. Mr Haidari suffers from major depression and anxiety disorder and taking antidepressant medication (Endep, 25mg) to cope with his life in general.
Mr. Haidari is receiving his Cognitive Behaviour Therapy (CBT) with psycho education component to improve his quality of life and his coping mechanism with current stressful family circumstances in Pakistan. His current depressive and anxiety symptoms include:
1. Poor memory and poor concentration,
2. Feeling of hopelessness and helplessness,
3. Poor sleeping and wakening early morning,
4. Loss of interest and motivation.
I found Mr. Haidari to have suffered considerable mentally [sic] from the effects of his psychological distress and barely coping with his day to day life. Due to the negative effects of his long term psychological distortion, it is difficult for him to be able to fulfill [sic] all the requirements of his citizenship application.
Mr. Haidari's memory, concentration and learning capacity was affected by his long standing history of depression and PTSD. Due to his poor educational background and his limited English learning skills, Mr. Haidari is not capable of understanding English and the nature of the application at the time.
The Respondent sought and obtained an adjournment to obtain further medical evidence. Mr Haidari agreed to this adjournment.
Dr Gary Banks, a clinical psychologist, assessed Mr Haidari on 7 October 2015 and furnished his report dated 28 October 2015.
At the assessment, an accredited interpreter interpreted for Dr Banks. Paragraphs 7 and 8 of the report read as follows.
7. The mandate, terms of assessment and the limits of confidentiality were reviewed with Mr Haidari with the assistance of an accredited interpreter, ... Mr Haidari gave verbal consent and indicated that he understood the terms of assessment. [The interpreter] relayed all information to Mr Haidari and he replied in Dari. Throughout the interview and assessment process, Mr Haidari appeared to be reliant on the interpreter's services extensively.
8. Mr Haidari remained attentive and alert throughout the assessment. In sum, Mr Haidari was oriented to time and place and did not evince any thought disturbance throughout his interview and assessment. He maintained appropriate eye contact and did not show any difficulties in articulating his views, opinions and thoughts.
As part of the assessment, Dr Banks administered psychometric tests.
Paragraphs 39-41 of the report of Dr Banks are as follows.
39. On the basis of supplied documentation, information attained at Mr Haidari's interview, the measures administered to assess motivational factors, results obtained and the behavioural insights gained during administration of measures to assess his cognitive functioning, it is in my view that Mr Haidari 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 is currently not capable of:
· Understanding the nature of the application; or
· Demonstrating a basic knowledge of the English language; or
· Demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship
40. It is my considered opinion that Mr Haidari's current psychological profile would not be considered sufficient to warrant excluding him from the usual application processes for Australian citizenship. As stated above, although Mr Haidari shows minimal understanding of the English language, he demonstrated the capacity to learn and retain new information, ability for recall, and does not appear to experience symptoms associated with any cognitive incapacity. While Mr Haidari reported that he has not received any formal education, Mr Haidari's efforts to obtain his NSW Driver's License, and in completing a lengthy interview and assessment process is further evidence of his ability to undertake the work required to sit the Citizenship test. Using his results from the most 'culture-fair' elements of the psychometric tests indicated he is functioning in at least the borderline level of cognitive ability as compared to same-aged peers. That result was reduced by virtue of his performance on educational sensitive measures, but in and of itself this does not suggest an identifiable 'mental incapacity' but rather a lack of formal education. Even more positively though, his learning and memory ability was assessed to be in the low average range compared to age, education and culturally matched peers. Such a result provides objective evidence of his capacity to learn novel material and retain it - despite interference of other material or of time delay. Such a finding would be considered sufficient to contraindicate the suggestion of a 'mental incapacity' to be unable to learn new information (such as would be required in the Citizenship test).
41. It would appear that Mr Haidari has acquired only a basic knowledge of English, but as indicated in documents provided, Mr Haidari has only completed 188 hours of 500 AMEP English tuition hours provided to him without cost. It would be most unlikely for any individual to acquire anything more than a handful of words and phrases in that time span. When provided material in Farsi, Mr Haidari was able to read and subsequently reiterate the content of the information, which is quite remarkable given his education is reported to have been limited to attendance at mosque to read the Quran, approximately 30 years ago. Similarly when given a task of multi-trial learning (in Farsi), he demonstrated a positive learning curve, and an intact ability to retain this information over time and in the presence of distracting information. Hence while it is acknowledged he may not even have a basic knowledge of the English language, this would not be considered attributable to an enduring mental incapacity but moreso a lack of education - for which he still has resources and support readily available should he choose to engage. Finally, in discussion with Mr Haidari about his motivation for seeking citizenship, he clearly articulated an understanding of its importance in facilitating the applications of his wife and children to be able to come to Australia. Similarly he detailed its importance in providing him with a passport and right to travel as an Australian and with the right of being able to vote. Combined, from a clinical perspective I would suggest these elements would be considered sufficient to indicate Mr Haidari's capability of understanding the privileges of citizenship.
THE ORAL EVIDENCE
Mr Haidari attended the hearing. He was unaccompanied and was not legally represented. He gave sworn evidence through an interpreter in Dari. Dr Pishyar gave evidence by telephone. Dr Banks attended the hearing and gave sworn evidence.
The evidence of Mr Haidari
Mr Haidari recounted that he grew up in Afghanistan and fled to Pakistan about six years ago. He said that his wife and children journeyed to Pakistan six months later. He recounted that at the beginning of 2010, he travelled to Christmas Island and after spending a short time in detention he received his permanent visa.
Mr Haidari said that he wished to obtain employment, but that he was advised to learn English. He said he attended English classes, but he could not recall how many hours of tuition he had undertaken.
Mr Haidari said that he became sick with bleeding and headaches.
Mr Haidari said he had attempted the citizenship test twice but had failed. He said he became sick doing the test for the second time.
Mr Haidari said that he still sees Dr Pishyar because he still has nightmares and insomnia.
Mr Haidari said that he obtained his driving licence in 2012 and that he took the test with an interpreter.
Mr Haidari said that he is in receipt of Newstart allowance.
In cross-examination, Mr Haidari said that he understood about Australian citizenship. He said that he would respect Australia's laws as this was his government. Mr Haidari said that he understood that he would have to vote. He said that he understood citizenship would facilitate him to travel.
Mr Haidari said that his native language was Dari. He also said that he didn't understand much Farsi.
Mr Haidari said that he failed the citizenship test twice because he can't read English. He can only really understand basic words.
Mr Haidari said that he does go shopping in the local shops, but sometimes he goes with his cousin.
Mr Haidari said that he did remember his assessment with Dr Banks. He said that he was sick. He said that he did not understand the interpreter. He could only understand one out of every two words.
Mr Haidari said that he still sees Dr Pishyar who speaks Farsi to him, but he can understand because Dr Pishyar speaks slowly.
The evidence of Dr Pishyar
Dr Pishyar confirmed the content of his two medical reports. Dr Pishyar explained that people like Mr Haidari who come from war torn countries and who have little education have learning difficulties.
Dr Pishyar said that Mr Haidari suffered from social retardation and not from mental retardation.
Dr Pishyar said that Dari and Farsi are quite similar and that Mr Haidari understands Farsi.
In cross-examination, Dr Pishyar said that he had not administered any standardised tests. However, he was giving Mr Haidari cognitive behavioural therapy.
The evidence of Dr Banks
Dr Banks recounted that he met with Mr Haidari and the interpreter who explained her accreditation in Dari. Dr Banks said that he explained the procedure and the rules of confidentiality.
Dr Banks said that Mr Haidari began by explaining his wish to become a citizen. He spoke about obtaining his driver's licence and his attempts to sit the citizenship test.
Mr Haidari spoke about his family and his travel to Australia.
Dr Banks gave details on the psychometric tests which he used during the assessment.
Dr Banks confirmed the assessment in his written report that Mr Haidari was not suffering from an enduring mental illness.
Dr Banks said that Mr Haidari was cooperative and understood what was said to him.
CONSIDERATION
The sole issue which I am required to decide is whether at the time he applied for Australian citizenship, that is on 1 August 2014, Mr Haidari came within s 21(3)(d) of the Citizenship Act. I am required to ask whether on 1 August 2014, Mr Haidari was suffering from a permanent or enduring mental incapacity which prevented him from understanding the nature of the citizenship application, from demonstrating a basic knowledge of English, and from demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of citizenship.
When giving his evidence through an interpreter, Mr Haidari comprehended the questions and answered with clarity. In his evidence, Mr Haidari said that he understood the nature of Australian citizenship, that he would be required to vote and that citizenship would facilitate his travel. Mr Haidari has also obtained a driver's licence and is in receipt of Newstart allowance.
I agree with Dr Pishyar that Mr Haidari is not suffering from mental retardation, but that owing to his past experiences he is suffering from social retardation.
I find that when seeing Dr Banks, Mr Haidari did sufficiently understand the interpreter to undergo the assessment.
I agree with the assessment of Dr Banks that Mr Haidari is not suffering from a permanent or enduring mental incapacity for the reasons set out in paragraph 14 above, particularly paragraph 39 of Dr Banks’ report dated 28 October 2014.
Having regard to the evidence of Mr Haidari, to the medical reports and evidence from Dr Pishyar and Dr Banks who are both clinical psychologists, I find that on 1 August 2014, Mr Haidari was not suffering from a permanent or enduring mental incapacity within the meaning of s 21(3)(d) of the Citizenship Act.
I found Mr Haidari to be a humble and cooperative person. Obviously, he wishes to sponsor his wife and children to come to Australia and obtaining Australian citizenship should facilitate their sponsorship. I infer that Mr Haidari was advised to apply using s 21(3)(d) of the Citizenship Act. This erroneous advice has caused Mr Haidari much unnecessary anxiety.
My advice to Mr Haidari is to obtain assistance with learning sufficient English, to pass the Australian citizenship test.
DECISION
The decision of the Minister's delegate dated 17 March 2015 to refuse Mr Haidari Australian citizenship is affirmed.
I certify that the preceding 47 (forty -seven) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member
..............................[sgd]..........................................
Associate
Dated 3 March 2016
Date(s) of hearing 23 November 2015 Applicant In person
Solicitors for the Respondent Clayton Utz
0
1
1