Khodeir v Minister for Immigration and Border Protection (Citizenship)
[2015] AATA 499
•13 July 2015
Khodeir and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 499 (13 July 2015)
Division GENERAL DIVISION File Number(s)
2014/1298
Re
Atef Khodeir
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Mr P W Taylor SC, Senior Member
Date 13 July 2015 Place Sydney The decision under review is affirmed.
........................................................................
Mr P W Taylor SC, Senior Member
CATCHWORDS
CITIZENSHIP – whether the 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 s 21(2), 21(3)(d)
CASES
Re Farhan v Minister for Immigration and Citizenship [2010] AATA 36
Re Rahman v Minister for Immigration and Citizenship [2010] AATA 930
Re Ravichandran v Minister for Immigration and Citizenship [2010] AATA 463
SECONDARY MATERIALS
Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill Explanatory Memorandum
Australian Citizenship Instructions
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
13 July 2015
Mr Khodeir is a 36-year-old Lebanese national who migrated to Australia in January 2008. He married in April 2008 and, despite apparently separating from his wife in early 2009, subsequently obtained a permanent visa (Partner (Residence) (Class BS) Sub class 801 (Partner)) on 5 July 2010. He unsuccessfully applied for Australian citizenship on 30 December 2013. The rejection of his application was communicated in a 13 February 2014 notice. It is that refusal which is the subject of Mr Khodeir’s review application to the Tribunal.
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 Mr Khodeir’s application. 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).
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.
The Minister’s delegate rejected Mr Khodeir’s application for several reasons - namely
(a)the fact that he was not receiving regular specialist treatment for his asserted incapacity
(b)a lack of satisfaction that his limited English literacy was a result of a physical or mental incapacity
(c)a lack of satisfaction that his claimed limited literacy would preclude him from demonstrating the “knowledge” criterion ACA 2007 s 21(2)(f) - having regard to various considerations including (i) the available informational and educational opportunities, (ii) the absence of any requirement to undertake the relevant knowledge test in English, (iii) the availability of free English tuition from the Adult Migration English Programme, (iii) Mr Khodeir’s success in obtaining a NSW driver’s licence, and (iv) his qualification for newstart allowance - with its potential eligibility involving activity tests and co-operation in undertaking an employment pathway plan.
PERSONAL CIRCUMSTANCES
Mr Khodeir is one of 10 children, all but two of whom still live in Lebanon. (Only Mr Khodeir and his 48-year-old sister live in Australia.) From 1994 until 1999 (that is from the ages of 15 to 20) Mr Khodeir worked as a carpenter in Lebanon. At the age of 20 he served a one year period in the Lebanese army as a conscript. For the two years after his army discharge he worked as an employed carpenter and then from 2002, until his migration to Australia in 2008, he was a self-employed carpenter
In paragraph 1 above I gave a brief summary of Mr Khodeir’s basic history since his arrival in Australia in 2008. In addition to those details it is presently significant to note that he has had a New South Wales drivers licence since about May 2009. In order to demonstrate his driving capacity he sat two knowledge tests (both on 24 July 2008, the second very soon after the first). He undertook four driving tests between February 2009 and his ultimately successful test on 20 May 2009. Since 2009 he has renewed his driver’s licence annually. From the time of his arrival in Australia until about 2011, Mr Khodeir worked as a carpenter. He has not been fully employed, and has been receiving newstart allowance, for several years.
DR ABU-ARAB’S ASSESSMENT
The considerations relevant for satisfaction that a person’s incapacity deprives them of any of the three functional capacities I referred to earlier are the subject of departmental policy guidelines contained in the Australian Citizenship Instructions. The Citizenship Instructions contemplate that applicants must produce evidence from a qualified medical practitioner of the relevant permanent or enduring physical or mental incapacity. The concept of an enduring incapacity is one from which either no recovery can be predicted or where any such recovery is such a long-term prospect that it would be unreasonable to await its occurrence. The Citizenship Instructions indicate that, in the case of a claimed mental incapacity, acceptable evidence may be provided by either a psychiatrist or psychologist.
Mr Khodeir’s application was supported by the 4 November 2013 opinion of Dr Mahmoud Abu-Arab. He is a clinical psychologist, a “member of the APS College of clinical psychologists” and apparently registered with the Psychology Board of Australia. The Respondent accepts that as a member of the Australian Psychological Society Dr Abu-Arab has a status equivalent to that of being a member of the Australian College of Psychological Medicine.
Before writing his 4 November 2013 report Dr Mahmoud Abu-Arab saw Mr Khodeir on two occasions (18 & 31 October 2013), as a result of a referral from Mr Khodeir’s general practitioner for treatment for depression and anxiety. Dr Abu-Arab said that in the course of his first consultation Mr Khodeir raised the question of citizenship and asked for Dr Abu-Arab’s assistance. It was that request which led to Dr Abu-Arab providing his 4 November 2013 letter.
In that letter Dr Abu-Arab reported that he had interviewed Mr Khodeir and conducted a mini mental state examination (“MMSE”) as a screening test to assess his cognitive abilities. Based on that examination, and the history obtained during the course of the two interviews, Dr Abu-Arab opined that Mr Khodeir suffered from a borderline intellectual disability and functioned at a corresponding level of impairment. He described Mr Khodeir as having very basic Arabic reading and writing skills, having left school in 1990 as a result of his father’s death and civil unrest in Lebanon, being completely illiterate in English, operating his iPhone in Arabic and being unable to use the phone to do anything other than make and receive phone calls. Dr Abu-Arab considered that Mr Khodeir’s cognitive difficulties prevented him from adequately learning and retaining new material. He concluded that Mr Khodeir did not have the intellectual capacity to satisfy any of the three relevant eligibility criteria (awareness, English and knowledge) in ACA 2007 s 21(3)(d).
DR BANKS’ ASSESSMENT
After the February 2014 rejection of Mr Khodeir’s citizenship application, and the commencement of the present review application, the Minister had Mr Khodeir assessed in March 2015 by Dr Banks, a clinical psychologist. His 15 page, 9 April 2015, report detailed information he obtained from Mr Khodeir, and the results of psychological testing he administered, over the course of a 5 hour, interpreter aided, assessment.
Significant aspects of the history Dr Banks obtained from Mr Khodeir were quite different from the limited history on which Dr Abu-Arab had based his opinion. These different aspects included the following
(a)Mr Khodeir had lived in a quiet peaceful Lebanese village and his schooling had not been significantly interrupted by civil unrest
(b)Mr Khodeir left school in 1993 not 1990
(c)Mr Khodeir had not just worked on the family farm in Lebanon, he had undertaken one year’s compulsory military service in the Lebanese army between 1999 and 2000
(d)Mr Khodeir’s father died in 2014, when Mr Khodeir was aged 35
(e)Mr Khodeir used his mobile phone to send and receive messages
(f)Mr Khodeir interacted with Dr Banks to a limited extent in English, and occasionally reacted and / or responded, before or without Arabic translation, to statements made in English.
The parties agreed that, in contrast to the single MMSE assessment that had been made by Dr Abu-Arab, Dr Banks had administered the following five recognised psychological tests:
(a)the Wechsler Adult Intelligence Scale, 4th Edition - “WAIS_IV”
(b)the Rey “15 Item Visual Memory Test” - “RMT”
(c)the Rey “Test of Memory Malingering” - “TOMM”
(d)the Rey Auditory Verbal Learning Test - “RAVLT”
(e)Test of Non-verbal Intelligence - “TONI”.
Dr Banks reported that in the course of his interaction with Mr Khodeir he had shown some understanding of basic English, demonstrated a capacity learn and retain new information, had an ability to recall and did not appear to be experiencing symptoms associated with any cognitive incapacity. Conversely Mr Khodeir, by virtue of his discussion of his reasons for applying for citizenship, appeared to have demonstrated a reasonably clearly understanding of the privileges and advantages of citizenship. Dr Banks thought that Mr Khodeir had demonstrated in the past, in connection with obtaining his driver’s licence, that he had the capacity to learn, persevere and succeed when sufficiently motivated.
In relation to the psychological tests themselves, Dr Banks described Mr Khodeir’s measured performance as well below that of a person who had obtained a driver’s licence, completed military service including weapons training, and had been able to learn to use an iPhone. He said that the poor results suggested that Mr Khodeir had been motivated to perform poorly in the tests and had acted accordingly. More specifically, Dr Banks reported that (i) in three tests directed at assessing motivation and effort Mr Khodeir had scored at, or below, chance and (ii) the research literature indicated that 95% of adults scored well above chance in one of those particular tests. In the light of those results, and his own observations of Mr Khodeir during the test process, Dr Banks concluded that Mr Khodeir had confounded the testing process - by intentionally providing responses he knew to be wrong. Dr Banks recognised that the poor measured performance might possibly involve a combination of genuine cognitive deficits and superimposed motivational factors. But, in Dr Banks’ opinion the results were so poor that it was proper to regard them as highly compromised by motivational factors and not capable of being validly interpreted.
Dr Banks concluded his opinion with the observation that Mr Khodeir’s current psychological profile was not sufficient to be satisfied that he lacked the relevant capacities.
DR ABU-ARAB / DR BANKS - COMPARATIVE EVALUATION
There was no challenge to the general appropriateness of the tests Dr Banks had used. Nor was there any criticism of his interpretation of the test results - in so far as they suggested deliberate confounding of the test process. Nevertheless, the submissions made on behalf of Mr Khodeir sought to undermine the significance of Dr Bank’s psychological testing, and the opinions he had advanced. The thrust of the submissions were that the tests were, to varying extents, based on English language or culture, and consequently inadequate to provide a reliable assessment of Mr Khodeir’s cognitive and intellectual capacities. The ultimate point was that the Tribunal should accept Dr Abu-Arab’s opinion(s) because (as a highly qualified, experienced and Arabic speaking clinician) he was in the best position to make the most reliable assessment of Mr Khodeir’s capacity.
There are a number of difficulties with these submissions. Those difficulties begin with the fact that Dr Abu-Arab’s own evidence revealed it was Mr Khodeir who had raised the question of citizenship with him, and sought his assistance. In addition, Dr Banks reported that Mr Khodeir had explained to him that although he had no definite reason for making the citizenship application he wanted to apply because he wanted to be like any other person in the country and to be able to vote in elections, obtain an Australian passport and travel overseas. (I note that considerations of these kinds have been regarded as probative of an applicant’s capacity to understand the nature of their citizenship application: see Re Farhan v Minister for Immigration and Citizenship [2010] AATA 36 at [7]; Re Rahman v Minister for Immigration and Citizenship [2010] AATA 930 at [13], ReRavichandran v Minister for Immigration and Citizenship [2010] AATA 463 at [5].
There is little, and in my opinion no realistic, factual basis to doubt that Mr Khodeir understands the nature of his application. And ultimately the submissions made on behalf of Mr Khodeir explicitly conceded that he could not demonstrate he lacked capacity to satisfy the “awareness” and “knowledge” eligibility criteria. Thus whilst Dr Abu-Arab’s 4 November 2013 letter unambiguously asserted that Mr Khodeir lacked the capacity to satisfy those criteria, that position lacked a credible factual basis and was effectively abandoned in the course of the present review proceedings.
A second difficulty in accepting Dr Abu-Arab’s opinions relates to his understanding that Mr Khodeir was completely illiterate in English, consequently operated his mobile phone in Arabic and used it only to send and receive phone calls. Each of these points is either simply wrong or misleading. The fact is that Mr Khodeir’s current iPhone (and it is significant that he has had several) operates in English. That is to say (i) the text labels on the application icons are English letters and words, (ii) the message texts displayed in the screen use the letters of the English alphabet, and (iii) I would infer that all the “setting” and “option” screens (at least some of which Mr Khodeir would have had to use) also appear in English. The additional fact is that Mr Khodeir does use his phone to send text messages. And he uses the roman / latin / English alphabet (rather than Arabic alphabet and script) to compose them. Finally, as at least a partial explanation of the latter, it is significant to note that, in the course of his Lebanese schooling Mr Khodeir studied French, and became familiar with the roman / latin alphabet.
The difficulties in accepting Dr Abu-Arab’s conclusions continue with a number of other matters, which I summarise as follows:
(a)The history on which Dr Abu-Arab based his opinion was seriously flawed - in the respects summarised in paragraph 12 above.
(b)The MMSE test that Dr Abu-Arab used is, as he himself acknowledged, primarily a screening test for gross cognitive deficits (eg dementia). Because it is a basic test, primarily concerned to detect (or eliminate) gross deficits, it is of no material utility in making an informed assessment of the true intellectual ability of a person such as Mr Khodeir.
(c)Dr Abu-Arab was aware of other more appropriate tests he could have used to assess Mr Khodeir’s capacities, but did not regard himself as having either the time or the resources to undertake them.
(d)Dr Abu-Arab conceded that he did not have a good understanding of either the various kinds of citizenship “knowledge” tests or the extent to which they could be prepared for, and undertaken, in languages other than English,
(e)Dr Banks lucidly explained in the course of his oral evidence, and without contradiction or challenge, that significant aspects of the psychological tests he used were neither language nor culture dependent.
(f)Dr Abu-Arab, despite offering general criticism of psychological tests as likely to be language or culture dependent (and this potentially unreliable in their application to Mr Khodeir),
(i)was not familiar with the tests Dr Banks actually administered
(ii)did not know to what extent, if at all, those tests were either in fact language or culture dependent
(iii)did not know the details of what the particular tests involved
(iv)was not aware of either the actual test results Dr Banks had obtained, or the criteria to be applied for the accurate interpretation and application of those results.
These matters convincingly demonstrate that Dr Abu-Arab’s opinions (ie the conclusions summarised in paragraph 10 above) had no adequate basis and cannot be accepted.
CAPACITY TO DEMONSTRATE A BASIC KNOWLEDGE OF ENGLISH
Mr Khodeir disputed Dr Banks’ account (see paragraph 12(f) above) of his apparent ability to understand and communicate in English. He denied that there was any instance where he had understood what was said to him in the March 2015 interview before it was translated into Arabic. But he added that it was important to remember that he had been living in Australia since early 2008. As a result he had, of course, inevitably picked up some expressions. But he insisted that his knowledge of English was extremely limited.
In that context Mr Khodeir explained that he had enrolled in English classes at some stage (he could not remember when), but had not actually attended any classes. He said that after he enrolled he had gone to be tested to assess the level of his English proficiency. That test was carried out by a person who was herself not a native English speaker, and Mr Khodeir’s own test results were very low. As a result the assessor wanted to put Mr Khodeir in a very low level English course, but he refused and never attended. He said he was unhappy at the thought of being put into such a low level course, perhaps with much younger people, and he thought it would likely be an experience that would not be good for his psychological state of mind.
Although Mr Khodeir said he could not remember when he had enrolled in English classes, there are some indications that it must have been a comparatively recent occurrence. The point came up in March 2015 in the course of his interview with Dr Banks, in the apparent context of being a recent event. Furthermore, in the course of his evidence in the present proceedings, Mr Khodeir explained that one of the reasons he had not gone on with the English classes was that he was 35 years old and he would be self-conscious about attending classes. Since Mr Khodeir has just turned 36, it seems highly likely that it was only in the last year that he first enrolled in English classes.
In so far as there is a conflict between Dr Banks and Mr Khodeir about the extent to which he displayed an apparent English language awareness and competence during the course of the 15 March 2015 interview, I unhesitatingly accept the evidence of Dr Banks. I do so because
(a)Dr Banks provided a clear, detailed and careful report
(b)Dr Banks was aware of his role as an expert witness, and appeared to comply with the obligations that apply to such a role
(c)Dr Bank’s evidence is consistent with Mr Khodeir’s limited concession that, in the course of the almost 7 years he has lived in Australia, he has picked up some English words and expressions
(d)Mr Khodeir does use a mobile phone configured in English and concedes that he understands and uses the roman / English alphabet
(e)I accept Dr Banks view that Mr Khodeir intentionally confounded the March 2015 testing process, and I consider that he is so highly motivated to minimise the true extent of his knowledge of the English language that his contradiction of Dr Banks is unreliable.
Finally, even though there may be something to be said for (i) overlooking, as an unreliable extravagance, Mr Khodeir’s assertion (as recounted by Dr Banks) that he does not know a word of English and (ii) recognising that Mr Khodeir likely does have limited English language skills, I do not consider that Mr Khodeir’s application should succeed. It should not succeed because Mr Khodeir has not satisfied me, either from his own evidence or that of Dr Abu-Arab, that his apparently limited English language abilities are a result of a relevant mental incapacity, as distinct from a lack of motivation, education and application.
CONCLUSION
For the reasons set out above, the decision under review is affirmed.
I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Counsel ..............................[sgd]..........................................
Associate
Dated 13 July 2015
Date(s) of hearing 15 and 18 June 2015 Advocate for Applicant Omar Interpreting Centre Solicitors for the Respondent DLA PIPER AUSTRALIA
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