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

[2020] AATA 33

Moukhalalati and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 33 (17 January 2020)

Division:GENERAL DIVISION

File Number(s):      2018/2093

Re:Rawaa Moukhalalati  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:17 January 2020

Place:Sydney

The Reviewable Decision is affirmed.

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

Senior Member Linda Kirk

CATCHWORDS

CITIZENSHIP – refusal of application for citizenship – citizenship test – claim for exemption based on inability to learn English – whether applicant suffers from a permanent or enduring mental incapacity – medical evidence considered – applicant diagnosed with Major Depressive Disorder – whether applicant’s inability to demonstrate basic knowledge of English based upon a permanent or enduring mental incapacity – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 23A, 24

CASES

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

Khodeir and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 499
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

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

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member Linda Kirk

17 January 2020

APPLICATION FOR REVIEW

1. Mrs Rawaa Moukhalalati (‘the Applicant’) was born in 1965 and is a citizen of Lebanon. She arrived in Australia on 3 March 2007 as the holder of a subclass 679 temporary visa.[1] On 1 December 2011, the Applicant was granted a subclass 801 permanent visa.[2]

   [1] T2, 12.

   [2] T2, 12.

2. On 19 March 2015, the Applicant applied for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (‘the Act’).[3] In her application for citizenship, the Applicant indicated that she wished her application to be assessed against s 21(3) of the Act on the basis that she had a permanent or enduring mental incapacity.[4]

   [3] T3, 22-30.

   [4] T3, 23.

3. In support of her application, the Applicant provided reports from Dr Mahmoud Abu-Arab, clinical psychologist, dated 2 February 2015[5] and 19 February 2018.[6]

   [5] T5, 49-52.

   [6] T8, 66-67.

4. On 11 April 2018, the citizenship application was refused by a delegate of the Minister (‘the Respondent’) as the delegate was not satisfied that the Applicant met the criteria under s 21(3)(d) of the Act (‘the Reviewable Decision’).[7] The delegate found that the medical evidence was insufficient to establish that the Applicant could not, with assistance, acquire a basic knowledge of the English language, as well as meet the other elements of s 21(3)(d) of the Act.

   [7] T2, 7-21.

5. On 19 April 2018, the Applicant applied to the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision.[8]

   [8] T1.

6. The matter was heard in Sydney on 18 September 2019. The Applicant attended the hearing in person and was self-represented. The Applicant gave evidence with the assistance of an Arabic language interpreter. The Tribunal also received oral evidence from Dr Gary Banks, consultant clinical psychologist, who appeared in person.

7. The following documents were before the Tribunal:

   ·Respondent’s Statement of Facts, Issues and Contentions;

   ·Section 37 T-Documents (pages 1 to 100) (Exhibit R1);

   ·Report of Dr Gary Banks dated 17 December 2018 (Exhibit R2);

   ·Photocopy of the Applicant’s New South Wales Photo Card (Exhibit R3);

   ·Report of Dr Mahmoud Abu-Arab, dated 18 July 2018; and

   ·Report of Mr Ayman Kassir, dated 3 August 2018.

   LEGISLATIVE FRAMEWORK

   Australian Citizenship Act 2007 (Cth)

   Consideration of citizenship application

8. Subsection 24(1) of the Act requires that if a person makes an application under section 21, the Minister (or a person delegated by the Minister) must, by writing, approve or refuse to approve a person becoming an Australian citizen.

9. Subsection 24(1A) of the Act provides that the Minister (or a person delegated by the Minister) must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8) of the Act.

   Eligibility criteria

10. The criteria and general eligibility requirements for the conferral of Australian citizenship are set out in section 21 of the Act. The provisions relevant to the determination of this application are as follows:

    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.

11. In order for citizenship to be granted, an applicant must satisfy all of the eight requirements that are listed in s 21(2). Subsections 21(2)(d), (e) and (f) can only be satisfied if the applicant understands the nature of the application, possesses a basic knowledge of the English language, and has an adequate knowledge of Australia and of the responsibilities and privileges of citizenship. This is demonstrated by the applicant successfully completing the citizenship test provided for in s 21(2A) of the Act:

    (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.

    Citizenship Test

12. 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)).

13. Successful completion of the citizenship test is an integral requirement for the consideration of a grant of citizenship. The test is designed to establish that an applicant both understands the rights and responsibilities of citizenship and the nature of their application. It also establishes a basic requirement in regard to competency in the English language.

    Exemption from the Citizenship Test

14. By virtue of s 21(3) of the Act, if the Minister is satisfied that an applicant who meets the general eligibility and residence requirements but is unable to meet the requirements of ss 21(2)(d),(e) or (f) due to “a permanent or enduring physical or mental incapacity, at the time the person made the application” is otherwise likely to reside, remain or maintain a close relationship with Australia and is of good character, they will be entitled to the grant of citizenship.

    Permanent or enduring physical or mental incapacity

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

    (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

15. The operation and effect of s 21 was outlined by Senior Member Taylor SC in Khodeir and Minister for Immigration and Border Protection:

    [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”).[9]

    [9] Khodeir and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 499.

    Citizenship Policy

16. The role of the Citizenship Policy is to provide guidance on the interpretation of the Act. The Tribunal is not bound to strictly apply the Citizenship Policy, as it is not law. As the Tribunal stated in Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 (6 November 1985) at [21]:

    Policy is not law. A statement of policy is not a prescription of binding criteria.

17. However, policy should be given due and proper consideration and weight unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [645] per Brennan J.

18. In relation to s 21(3), the Citizenship Policy states:

    For applications received on or after 9 November 2009 for consideration under s 21(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.[10]

    [10] Australian Citizenship Policy, pp. 71-74.

19. 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 citizenship application, or acquire basic English language competency or understand the responsibilities and privileges of citizenship.

20. In order to demonstrate this, the applicant must 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.

21. 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’.[11]

    EVIDENCE BEFORE THE TRIBUNAL

    Medical reports

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

    Dr Mahmoud Abu-Arab, Clinical psychologist

22. In his report dated 2 February 2015,[12] Dr Mahmoud Abu-Arab stated that he had by the date of the report, consulted with the Applicant six times during which she participated in a Cognitive Behavioural Program ‘to overcome her psychological problems’.[13] He reported that her primary education was interrupted due to civil war in Lebanon between the years of 1975 and 1991, so she only completed five years of schooling. She has very basic reading and writing skills in Arabic but is illiterate in English. As a result of a car accident in September 2012, she suffers chronic pain and ‘impairment in social, occupational and day to day areas of functioning’.[14] She cannot use a mobile phone other than to call stored numbers, and denied having a driver’s licence. All commercial transactions, such as shopping and banking, are conducted by speaking to an Arabic speaking assistant.[15]

    [12] T5.

    [13] T5, 49.

    [14] T5, 50.

    [15] T5, 50.

23. Dr Abu-Arab performed a Mini Mental State Examination of the Applicant to screen her cognitive ability. He reported the Applicant as able to answer only a limited number of simple questions and she could not write a meaningful sentence in Arabic or English.[16] He diagnosed her as suffering from Major Depressive Disorder and functioning ‘at the borderline level of intellectual disability’.[17] He concluded that she is ‘unable to process newly learnt information and…unable to retain such information due to her condition’.[18]
    

    [16] T5, 50-51.

    [17] T5, 51.

    [18] T5, 51.

    [19] T5, 52.

    In his opinion, the Applicant does not ‘have the basic knowledge of the English language to enable her to learn and retain new information’, to pass the Citizenship Test. He considered that her condition was ‘permanent and long lasting’ and unlikely to change with further training.[19]

24. In a report dated 19 February 2018,[20] Dr Abu-Arab reported that the Applicant was first referred to him in October 2014 and since then she had attended 14 consultations, most recently on 5 February 2018. He repeated his earlier diagnosis of the Applicant, confirming that her condition is ‘permanent and long-lasting’, and opined that as an ‘illiterate person’ she ‘will not be able to learn, whether it is from a book or from a computer, information required to pass the citizenship test. Her depression and anxiety will always be an additional obstacle in her learning process’.[21]

    [20] T8, 66.

    [21] T8, 67.

25. In a further report dated 18 July 2018,[22] Dr Abu-Arab opined that due to the Applicant’s illiteracy in her native language and English, and her ‘intellectual disability’, she would experience ‘extreme difficulty’ in learning reading and writing skills in a second language. The Applicant’s depression contributes to this difficulty in learning new material.[23]

    [22] Report of Dr Mahmoud Abu-Arab, dated 18 July 2018.

    [23] at 1.

    Mr Ayman Kassir, Psychologist

26. The Applicant provided a report of Mr Kassir dated 3 August 2018.[24] He reported having held two sessions with the Applicant since July 2018 which he conducted in the Arabic language. She ‘exhibited symptoms and behaviours that are characteristic of mental health problems at a level of frequency, duration and intensity, which seriously affected her daily functioning and emotional well-being’. He reported that the Applicant’s ‘verbal and cognitive presentation suggests at least an average level of intelligence’. She ‘reported no English speaking, reading and writing skills’, and that she suffers ‘distress, anxiety and depressive symptoms’.[25] He assessed her as meeting the diagnostic criteria for ‘Major Depressive Disorder, Recurrent Episode, Severe’.[26] Mr Kassir did not provide an opinion on the criteria under s 21(3)(d) of the Act.

    [24] Report of Mr Ayman Kassir, dated 3 August 2018.

    [25] p1.

    [26] p2-3.

    Dr Gary Banks, Consultant clinical psychologist

27. On 8 November 2018, at the request of the Respondent, the Applicant attended Dr Banks for an assessment to determine whether she had a permanent or enduring mental incapacity at the time of her application for citizenship. Dr Banks was provided with copies of the T documents, including the medical reports referred to above.

28. In his report dated 17 December 2018,[27] Dr Banks recorded that the Applicant had received limited education in Lebanon, which was likely ‘significantly disrupted by war’ and had not pursued any formal education since arriving in Australia in 2007.[28]

    [27] Exhibit R2.

    [28] [4], [8].

29. After interviewing the Applicant and having her perform a series of cognitive tests,[29] Dr Banks concluded that the Applicant had some limited ability to read English ‘at a level expected on average of a person with Grade 2 Reading ability’.[30] She ‘was able to follow instructions interpreted by the interpreter without evident difficulty’.[31] He noted that Dr Abu-Arab ‘did not report having conducted any objective or standardised psychometric tests of [her] enduring cognitive capacity’.[32] In his opinion, Dr Abu-Arab’s ‘pessimistic assessment of her prospects for improvement has not been corroborated’ by the current assessment.[33] In his opinion, the Applicant is ‘far from being “completely illiterate” and Dr Abu-Arab, either ‘previously underestimated her language ability’ or she ‘has learned significantly since’.[34] Dr Banks observed that the Applicant ‘was likely being held back in developing fluency of expression by her reluctance to make mistakes in public’.[35] Given her lack of participation in any program of English classes, her ‘basic ability to comprehend simple English’ was a ‘considerable achievement that she might reasonably be expected to build on with support’.[36] He observed that the Applicant:

    …demonstrated an accurate knowledge of current political personalities and news events which indicated that she has already employed an ability to learn the kind of information required for the test, albeit that it may have taken extensive repetition and rehearsal to achieve this. [Her] understanding of the value of citizenship was very limited, but none of her responses during this assessment suggested that she could not adequately develop this understanding.[37]

    [29] see [18]- [22].

    [30] [17].

    [31] [18].

    [32] [10].

    [33] [11], [26].

    [34] [26].

    [35] [28].

    [36] [29].

    [37] [29].

1. Dr Banks concluded:

   Based on her presentation and testing for this assessment and the materials available for my review, I do not believe that Ms Moukhalalati's psychological profile warrants excluding her from the application processes for Australian citizenship by the usual pathway. Indeed, she might be expected to benefit personally from the completing the application process, using the prospect of earning her citizenship as an incentive to overcome her trepidation towards engaging in a structured, supportive program to assist her to develop her English language skills to fulfil her potential.

   In sum, in my view Ms Moukhalalati 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 she was not capable either 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.

   Ms Moukhalalati would benefit from assistance to be able to access English tuition classes to which she would most likely still be eligible as a new migrant. She would also benefit from assistance to be able to access the support classes for the citizenship test.[38] (emphasis added).

   [38] [31]-[33].

2. In his oral evidence at the hearing, Dr Banks confirmed he has graduate and post-graduate degrees in psychology including a Doctor of Philosophy from the University of New South Wales.[39]

   [39] Transcript p12.

3. Dr Banks told the Tribunal that the Applicant ‘is one of the more intelligent individuals that [he has] assessed for the process of reviewing citizenship visa conferrals’.[40] He agreed with Mr Kassir’s opinion that the Applicant’s ‘verbal and cognitive presentation suggests at least an average level of intelligence’.[41] He was ‘hesitant to comment’ on the reason why Dr Abu-Arab’s opinion differed from his opinion and that of Mr Kassir, but pointed out that he conducted ‘a far more comprehensive assessment to provide some evidence for [his] opinion’.[42] It appeared to Dr Banks that Dr Abu-Arab did not undertake any testing of the Applicant.[43]

   [40] Transcript p13.

   [41] Transcript p15

   [42] Transcript p16.

   [43] Transcript p16.

4. Dr Banks was asked whether the Applicant’s depression affects her ability to learn. He agreed that the Applicant exhibits signs of a depressive disorder but despite this her ‘level of cognitive function was still quite impressive’.[44] She has ‘a good understanding of the alphabet, a good understanding of reading English, a good understanding of receptive language. She is just lacking the confidence in expressive language’.[45] In his view, the Applicant has ‘sound capacity’ and ‘a demonstrable set of abilities and … quite an impressive knowledge of Australia …’.[46] She ‘clearly values’ the Australian community and ‘understands the privileges associated with … citizenship’. In his opinion, if the Applicant were to do an English course and engage in English conversational classes it ‘would certainly help [her] moods enormously’.[47]

   [44] Transcript p17.

   [45] Transcript p17.

   [46] Transcript p17.

   [47] Transcript p18.

   Applicant’s evidence

5. The Applicant told the Tribunal she is her husband’s carer and she receives a Centrelink benefit.[48] She and her husband regularly travel to Lebanon and on cruises and they have recently returned from a holiday in Alaska and Canada.[49]

   [48] Transcript p5.

   [49] Transcript p5.

6. The Tribunal asked the Applicant whether she agreed that she has the capacity to undertake English language classes and to gain knowledge of the English language. She agreed that she does. It further asked her whether she understands the nature of an application for citizenship and the difference between citizenship and permanent residence to which she replied ‘of course’. She further agreed that she is able to demonstrate a good knowledge of Australia and its culture and way of life, and that she has an awareness and understanding of the responsibilities and privileges of being an Australian citizen.[50] She further agreed that ‘there is no argument’ that she is able to undertake the Citizenship Test.[51]

   [50] Transcript p21.

   [51] Transcript p22.

   Respondent’s submissions

7. The Respondent contends that the Applicant has not provided sufficient evidence to support her claim that she satisfies the requirements of s 21(3)(d) of the Act. Nor has she provided sufficient evidence to refute the assessment and conclusions reached by Dr Banks in his comprehensive report. Dr Banks’ reasons for rejecting Dr Abu-Arab’s conclusions[52] should be accepted as compelling. Unlike Dr Banks, Dr Abu-Arab did not report having conducted any objective or standardised psychometric tests of the Applicant. Furthermore, the Applicant’s presentation at her appointment with Dr Banks showed ‘significant’ improvement in skill on that reported by Dr Abu-Arab.[53] The report of Mr Kassir does not address the relevant criteria and should be given little weight.

   [52] Respondent’s Statement of Issues, Facts and Contentions, [23] and [26].

   [53] [24] and [26].

8. The Respondent accepts, as did Dr Banks, that the Applicant may currently have limited intellectual and language skills, but submits that these do not constitute a ‘permanent or enduring mental incapacity’ sufficient to render her incapable of demonstrating a basic knowledge of the English language, of understanding the nature of the citizenship application, or of demonstrating an adequate knowledge of the responsibilities and privileges of citizenship. These may be as a consequence of limited education, but in Dr Banks’ expert opinion, this can be overcome with motivation, training and persistence on the Applicant’s part.[54]

   [54] at [26].

9. The Tribunal should not be satisfied that, at the time of the application, the Applicant had a permanent or enduring mental incapacity such that she meets the criteria in s 21(3)(d) of the Act.

   CONSIDERATION AND REASONS

10. The Tribunal is required to determine whether or not the Applicant qualifies under s 21(3)(d) of the Act to be granted an exemption from having to undertake the Citizenship Test.

11. As Senior Member Puplick observed in Butrus and Minister for Immigration and Border Protection [2019] AATA 239 at [61], in order for the requirements of s 21(3)(d) to be satisfied, there must be established a ‘clear causal connection’ between a permanent or enduring physical or mental incapacity at the time of the citizenship application and one of the three requirements in s 21(2)(d), (e) and (f) termed by Senior Member Taylor SC in Khodeir as ‘awareness’, ‘English’ and ‘knowledge’. The evidence must support a finding that the Applicant has a permanent or enduring physical or mental incapacity, and that there is a direct causal link between this incapacity and her lack of understanding of the nature of the citizenship application (‘awareness’), or her lack of basic knowledge of the English language (‘English’), or her lack of adequate knowledge of Australia and of the responsibility and privileges of Australian citizenship (‘knowledge’).

    Did the Applicant have a permanent or enduring mental incapacity at the date of her citizenship application?

12. The relevant section of the Act refers, in Senior Member Taylor SC’s characterisation, to ‘awareness, English and knowledge.’ Each is a separate category and failure to meet any one of these allows an Applicant to claim exemption from the Citizenship Test. The Applicant demonstrates appreciation of the ‘awareness’ and ‘knowledge’ components, and therefore her claim for exemption from the Test is based primarily on her inability to learn English. To qualify under the Act, this inability must be based upon a mental incapacity that is permanent or enduring.

13. In weighing the professional opinions before it, the Respondent asks the Tribunal to give greater weight to the report of Dr Banks compared with that of Dr Abu-Arab on the basis that Dr Banks’ report represents a more comprehensive and evidence-based assessment of the Applicant directed specifically towards the criteria laid down in the Act.

14. The Tribunal has placed significant weight on the findings of Dr Banks and prefers his opinions over those of Dr Abu-Arab and Mr Kassir. The evidence before the Tribunal is that in reaching his conclusions in relation to the Applicant, Dr Abu-Arab did not conduct any objective or standardised psychometric tests of the Applicant. By contrast, Dr Banks conducted a range of cognitive tests on which he based his findings in relation to the Applicant. Those findings are that the Applicant is not ‘suffering from a permanent or enduring physical or mental incapacity … nor suffering from such a condition that would mean that she was not capable either 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.’

15. None of the evidence before the Tribunal undermines the findings of Dr Banks’ report as elaborated by him during his oral evidence at the hearing. The findings of Mr Kassir do not address the relevant criteria in the Act and have been given little weight. At the conclusion of the hearing the Applicant herself stated that she did not disagree with Dr Banks’ opinion in relation to her capacity and cognitive abilities and her ability to undertake English language classes and to gain knowledge of the English language. She agreed that she understands the nature of an application for citizenship, is able to demonstrate a good knowledge of Australia, and has an awareness and understanding of the responsibilities and privileges of being an Australian citizen.[55] She does not disagree that she is able to undertake the Citizenship Test.[56]

    [55] Transcript p21.

    [56] Transcript p22.

    CONCLUSION

16. On the basis of the evidence before it, the Tribunal is not satisfied the Applicant had a permanent or enduring mental incapacity at the date of her citizenship application and therefore does not meet the requirements of s 21(3)(d) of the Act entitling her to an exemption from the Citizenship Test.

    DECISION

17. The Reviewable Decision is affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

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

Associate

Dated: 17 January 2020

Dates of hearing:	24 June 2019 & 18 September 2019
Applicant:	In person
Solicitors for the Respondent:	Ms E Knight, Australian Government Solicitor