Laalaa and Minister for Immigration and Border Protection (Citizenship)
[2015] AATA 579
•10 August 2015
Laalaa and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 579 (10 August 2015)
Division
General Division
File Number
2014/2453
Re
Sanaa Laalaa
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 10 August 2015 Place Sydney The Tribunal affirms the decision under review.
............................[sgd]............................................
Ms G Ettinger, Senior Member
CATCHWORDS
MIGRATION AND CITIZENSHIP – Application for citizenship by conferral – failure to meet tests in outlined section 21(3)(d) of the Citizenship Act 2007 - whether Applicant suffers a permanent and enduring mental incapacity such that she is not capable of understanding the nature of the application, or demonstrating a basic knowledge of English or demonstrating an adequate knowledge of Australia and the responsibilities and privileges of citizenship – reports of psychologists – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 s 21(3)(d)
CASES
Drake v Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Ms G Ettinger, Senior Member
10 August 2015
SUMMARY
Mrs Saana Laalaa, the Applicant in the proceedings before this Tribunal, is a citizen of Lebanon, aged 54, who arrived in Australia in 2007. Since 15 November 2012, she has been the holder of a Class BB Subclass 155 (Five Year Resident Return) visa.
On 2 January 2014, the Applicant applied for Australian citizenship by conferral.
On 16 April 2014, a delegate of the Minister for Immigration and Border Protection decided not to grant the Applicant citizenship because the delegate was not satisfied that Mrs Laalaa met the requirements contained in section 21(3)(d) of the Australian Citizenship Act 2007 (the Act). The delegate decided that at the time of her application, Mrs Laalaa was not, by reason of an enduring physical or mental incapacity, incapable of understanding the nature of her citizenship 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.
The Tribunal had before it the reports of two registered psychologists, Dr Mahmoud Abu-Arab and Dr Gary Banks, who had examined Mrs Laalaa. Both psychologists gave oral evidence before the Tribunal, with Dr Abu-Arab appearing by telephone. There was disagreement between the psychologists as to Mrs Laalaa’s capacity.
Mrs Laalaa had attended at Dr Abu-Arab for six consultations on referral from her general practitioner. Dr Abu-Arab’s rather scant notes were tendered to the Tribunal and were headed ‘Citizenship’.
I am not satisfied that Mrs Laalaa met the requirements in section 21(3)(d) of the Act at the time of her application for citizenship, and accordingly affirm
edthe decision under review. My reasons follow.ISSUE BEFORE THE TRIBUNAL
The issue before the Tribunal is whether the Applicant satisfies the requirements in section 21(3)(d) of the Act, that is, whether she had a permanent or enduring physical or mental incapacity at the time she made her application for Australian citizenship, meaning in particular, that she was not capable of demonstrating a basic knowledge of the English language at that time. Relevant to consideration of this issue is the policy as set out in Chapter 5.9 of the Australian Citizenship Instructions (ACIs).
RELEVANT LEGISLATION
The relevant legislation in this matter is the Australian Citizenship Act 2007, in particular section 21(3)(d).
The ACIs provide guidance to decision makers, including the Tribunal, and must be taken into account unless there is a cogent reason not to (Drake v Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 634). Chapter 5.9 is particularly relevant in this case.
EVIDENCE BEFORE THE TRIBUNAL
Mrs Laalaa, who attended the hearing with her daughter, was represented by Mr Omar Jamal, who described himself as an advocate. Mrs Laalaa gave oral evidence with the assistance of a very competent interpreter in the Arabic language, Mr Ahmad Al Romi. Ms Louise Buchanan of the Australian Government Solicitor represented the Respondent.
Mrs Laalaa told me that she left school in fourth grade, and due to the civil war in Lebanon, her family kept her at home. She married, then had her first child when she was 15 years old. Mrs Laalaa provided the names of her children when I asked her, but said that she was unable to remember their exact birthdays. She was unable, she said, to give me details of her address, and was unable or unwilling to say how long ago she arrived in Australia, saying that it was five or perhaps seven to eight years ago. Mrs Laalaa told me that she does not, and cannot use a mobile phone, and as she is at home, she can use the landline. She said that she does not know how to send SMS messages, and does not use a credit card or drive a car. She does the cooking and washing, and knits for a hobby.
Mrs Laalaa said that in 2007 she attended four to six hours of the 500 available hours of English language tuition provided by the Department in order to assist her to learn English. She said that she tried to remember words, but forgot everything she learned in class. She has not tried to attend since. Mrs Laalaa said that she knows a few words of English, such as ‘yes, no’, and ‘thank you’. She said that she tried to learn English in order to speak to her grandchildren, but has no retention of words. Mrs Laalaa told me that her husband, who is a truck driver, speaks some English, but not very much. They speak Arabic at home, and everyone she knows speaks Arabic. She does not try to speak in English.
Mrs Laalaa said that she goes out shopping accompanied by her daughter, and cannot go anywhere alone. Dr Banks commented in this regard, stating he felt that it was apparent that both Mrs Laalaa and her daughter engaged in habitual dependent/supportive behaviours. He noted that Mrs Laalaa demonstrated a lack of confidence in her abilities and that the well intentioned efforts made by her husband and daughter to assist her are perpetuating a cycle of reduced confidence in her memory, memory distrust and subjective cognitive impairment.
Dr Banks’ experience was that Mrs Laalaa showed some understanding of basic English, and demonstrated some comprehension of instructions presented to her in English during psychometric testing prior to those instructions being translated into Arabic. To Dr Banks, this indicated that Mrs Laalaa’s knowledge of English was better than the level she reported to the Tribunal, as well as that which was reported by Dr Abu-Arab.
As to the citizenship test; Mrs Laalaa said that she attempted it once. She asked a rhetorical question, being how she could be expected to do the test when she knew inside that she could not.
Mrs Laalaa told me that she had attended at Dr Abbas Al-Taiff, a general practitioner, since early 2013, but did not remember exactly when. She said that she has several health issues, including back pain, low iron levels and bleeding, and that she is generally unhappy, and would like to live closer to her children.
Mrs Laalaa told me that she was referred to Dr Abu-Arab a long time ago, and attended four or five sessions with him. She is receiving no treatment currently, and says she cannot tolerate medication. When questioned about whether she asked Dr Abu-Arab to support her citizenship application, Mrs Laalaa said that she could not remember.
EVIDENCE OF DR MAHMOUD ABU-ARAB
Dr Abu-Arab, a clinical psychologist, provided two reports, one dated 22 April 2013 which was before the Respondent at the time of the decision made on 14 April 2014 and is in the section 37 documents. The second, Exhibit A1, was dated 28 July 2014. Dr Abu-Arab gave oral evidence by telephone at the hearing.
In his oral evidence Dr Abu-Arab confirmed the opinions he gave in his written reports. He stated that Mrs Laalaa was referred to him under a Mental Health Care Plan to help her overcome anxiety and depression, and that he saw her on six occasions. He said that she had been shot in the left lower limb during the civil war in Lebanon, and had been experiencing symptoms of post-traumatic stress. However he did not diagnose that condition or any other mental illness.
Dr Abu-Arab described how he came to his conclusions that Mrs Laalaa has borderline intellectual disability which is permanent and not treatable. He described administering a modified MMSE. A mini mental state examination which is a screening, not a diagnostic test, and by applying his clinical judgment. He considered that Mrs Laalaa is not capable of demonstrating a basic knowledge of English, being semi-literate in Arabic, her native language, and completely illiterate in English. He also opined that she is not capable of demonstrating an adequate knowledge of Australia, and of the responsibilities and privileges of Australian citizenship, which I have noted are what is required under section 21(3)(d) of the Act. Dr Abu-Arab also confirmed that he had been asked to assist with the citizenship application, and recommended exemption for Mrs Laalaa from the citizenship test.
EVIDENCE OF DR GARY BANKS
Dr Banks, also a clinical psychologist, provided a report dated 17 December 2014 which was Exhibit R3 before the Tribunal. He gave oral evidence in person. Dr Banks reported that Mrs Laalaa, who attended at the consultation with him accompanied by her daughter and an interpreter, greeted the clinician in a warm manner and demonstrated appropriate affect throughout assessment. She was cheerful throughout testing, smiling and laughing as she shared jokes. When asked about the report of her laughing during the consultation with Dr Banks, Mrs Laalaa said she did not understand what was being said.
Dr Banks’ experience was that Mrs Laalaa showed some understanding of basic English, and demonstrated some comprehension of instructions presented to her in English during psychometric testing prior to those instructions being translated into Arabic. To Dr Banks, this indicated that Mrs Laalaa’s knowledge of English was better than the level reported by Ms Laalaa to the Tribunal, and as reported by Dr Abu-Arab.
Dr Banks also reported Mrs Laalaa impressed as cheerful, cooperative, and remained engaged throughout her two and a half hour interview, and two hour psychometric testing. That appeared to him to be in contradiction of her claim to have memory impairment, and poor concentration.
Dr Banks also noted that Mrs Laalaa demonstrated sound ability for recall and recognition of information throughout the interview, recalling the names of her eight siblings, and names and year of birth of her four children, as well as naming all 14 grandchildren by chronological age. Dr Banks recorded Mrs Laalaa’s description of low mood due to the dreary weather on the day she attended the consultation. He noted however, that her low mood did not appear to have negatively impacted on her ability to fulfil daily functioning.
Dr Banks commented upon Mrs Laalaa’s dependence upon her husband and daughter and the continued lack of confidence in her own abilities this fostered.
Dr Banks opined in summary, following testing and his assessment of Mrs Laalaa, that she returned a performance consistent with an individual functioning in the average range of cognitive ability, though her performance was likely to be negatively impacted by her negative appraisals as well as her diminished confidence in memory and cognitive ability, rather than cognitive impairment.
Dr Banks opined that despite Mrs Laalaa’s self-report of subjective memory impairment, objective measures of Ms Laalaa’s short-term and long-term memory (which resulted from his tests), indicated that her perceived impaired abilities were not congruent with her actual performance on the task. He found that she did not show significant impairment in her abilities to attend, to encode and to recall new information.
Dr Banks commented that the MMSE Dr Abu-Arab used to assess Mrs Laalaa’s cognitive abilities was a brief screening test which takes 10 minutes, and comprises of 11 questions. He commented that it is a test used in hospital settings as a screening tool to identify cognitive deficits in patients with dementia. He also indicated that a revised version, the Rowlands Universal Dementia Assessment Scale 2002 (A Multicultural Mini-Mental State Examination), has been published in order to overcome the Anglo/English bias evident within the standard MMSE. Using the updated version, Dr Banks reported that Mrs Laalaa returned a performance well above cut-off levels indicative of organic conditions associated with cognitive decline.
Dr Banks also opined that Mrs Laalaa’s performance on formal psychological testing indicated that she is quite capable of learning novel information and retaining that over time.
Dr Banks’ opinion on the basis of the documentation he had received, and his interview and testing of Mrs Laalaa was that she did not appear to be suffering from a permanent, enduring physical or mental incapacity, and not to be suffering from such a condition that would mean that she was not capable of understanding the nature of the application, demonstrating a basis knowledge of English or demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. He did not find her to be experiencing symptoms associated with post-traumatic stress or any mental incapacity. Dr Banks did not think Mrs Laalaa’s current psychological profile would warrant excluding her from the usual application processes for Australian citizenship.
CONCLUSIONS
In order to decide whether Mrs Laalaa can succeed in her application for citizenship by conferral, I have to apply section 21(3) of the Act. Mrs Laalaa meets the tests in sections 21(3)(a) of the Act in that she was over 18 years of age when she made the application for citizenship. She meets the tests in section 21(3)(b) of the Act as she was a permanent resident at the time of her application, and meets the tests in section 21(3)(c) of the Act in that she satisfied the general residence requirements.
Section 21(3)(d) of the Act states that a person is eligible to become an Australian citizen if the Minister is satisfied that the person 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;
(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.
I have considered Mrs Laalaa’s evidence and that of the two registered psychologists who have examined her and provided reports and oral evidence.
Mrs Laalaa relied on her perception that she cannot concentrate or retain information, and told me that she only went to four to six hours of English tuition out of the 500 hours she could have attended which are funded by the taxpayer and Department. Dr Banks reported that in his opinion, Mrs Laalaa’s knowledge of English was greater than she was willing to admit. She also told him she was willing to learn English, and he noted that there are classes, materials and arrangements available for people with difficulties such as Mrs Laalaa might experience in attending class or doing tests.
I am satisfied that Dr Banks also demonstrated as a result of his extensive testing, that despite Mrs Laalaa’s self-reports of subjective memory impairment, objective measures of her short-term and long-term memory indicated that her perceived impaired abilities were not congruent with her actual performance on the task. He found that she did not show significant impairment in her abilities to attend, to encode and to recall new information.
Dr Banks also reported Mrs Laalaa impressed as cheerful, cooperative, and remained engaged throughout her two and a half hour interview, and two hour psychometric testing. That appeared to be in contradiction of her claim to have poor concentration.
Dr Abu-Arab considered that Mrs Laalaa is not capable of demonstrating a basic knowledge of English, being semi-literate in Arabic, her native language, and completely illiterate in English. He also opined that she is not capable of demonstrating an adequate knowledge of Australia, and of the responsibilities and privileges of Australian citizenship.
I noted that Mrs Laalaa concentrated on what she cannot, or does not do, which includes, amongst other things, leaving the house alone, driving a car, and using a mobile phone or sending SMS messages. I accept Dr Banks’ opinion in that regard, which is that Mrs Laalaa’s dependence upon the assistance of her husband and daughter, which is no doubt provided out of kindness and love for her, nevertheless fosters a continued lack of confidence in her own abilities.
Dr Banks opined in summary, following testing and his assessment of Mrs Laalaa that: she returned a performance consistent with an individual functioning in the average range of cognitive ability, though her performance was likely to be negatively impacted by her negative appraisals as well as her diminished confidence in memory and cognitive ability rather than cognitive impairment.
I note that Dr Abu-Arab administered a modified version of the MMSE, which he acknowledged is a screening, not a diagnostic test, and is administered in ten minutes, following which he applied his clinical judgment to come to the conclusion that Mrs Laalaa has borderline intellectual disability which is permanent and not treatable. I refer to the evidence of Dr Banks as noted above regarding Mrs Laalaa’s capacity, and prefer it to that of Dr Abu-Arab.
On the basis of Mrs Laalaa’s evidence, and the results of her consultations with the psychologists, I prefer the opinion and findings of Dr Banks as the testing he undertook was far more in depth than that of Dr Abu-Arab, who conducted a very short 10 minute modified test. Accordingly I am unable to find that she met the requirements of section 21(3)(d) of the Act at the time of her application for citizenship, and therefore does not qualify for Australian citizenship.
Mrs Laalaa is free to re-apply for citizenship and undertake the necessary test whenever she feels ready to do so.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member ................................[sgd]........................................
Associate
Dated 10 August 2015
Date of hearing 13 May 2015 Advocate for the Applicant Mr O Jamal Solicitors for the Respondent Australian Government Solicitor
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