Rana Al-Kaabi and Minister for Immigration and Border Protection

[2014] AATA 41

[2014] AATA 41

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/1743
Re	Rana Al-Kaabi
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Ms G Ettinger, Senior Member
Date	30 January 2014
Place	Sydney

The Tribunal is satisfied that Ms Al-Kaabi meets the requirements of section 21(3)(d)(ii) of the Act and accordingly sets aside the decision under review and remits the matter to the Respondent for consideration of the remaining criteria under sections 21 and 24 of the Australian Citizenship Act 2007.

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

Ms G Ettinger, Senior Member

CATCHWORDS

CITIZENSHIP – Applicant seeking exemption from sitting the Citizenship test – whether the Applicant had a permanent or enduring physical or mental incapacity at the time of making the application that meant she was not capable of demonstrating a basic knowledge of the English language at that time – decision under review set aside and remitted.

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 24

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship Instructions

REASONS FOR DECISION

Ms G Ettinger, Senior Member

30 January 2014

SUMMARY

1. Ms Rana Al-Kaabi, an Iraqi national aged 36, has applied to this Tribunal for a review of the decision dated 7 March 2013, of a delegate of the then Minister of Immigration and Citizenship (now Minister of Immigration and Border Control). The delegate refused her application for citizenship pursuant to 21(3)(d) of the Australian Citizenship Act 2007 (the Act).

2. Ms Al-Kaabi attended the hearing unrepresented, but accompanied by her husband who also gave evidence before the Tribunal, and assisted by an interpreter in the Arabic language, Mr Al Romi.

3. Ms Al-Kaabi had applied for citizenship on 7 September 2012. Because Ms Al-Kaabi indicated that she suffers a permanent or enduring mental incapacity, the decision of the delegate was made pursuant to section 21(3) of the Act which provides for exemptions to the normal requirements for citizenship where applicable. The delegate was satisfied that Ms Al-Kaabi satisfied section 21(3)(a) of the Act in that she was aged over 18 at the time of the application, that she satisfied section 21(3)(b) of the Act in that she was a permanent resident at the time, and that the general residence requirement (section 21(3)(c)), was satisfied.

4. The delegate did not make an assessment of section 21(3)(d) of the Act, being whether Ms Al-Kaabi had a permanent or enduring physical or mental incapacity at the time of making the application. The delegate was not satisfied that Ms Al-Kaabi had been assessed by a person qualified pursuant to the Australian Citizenship Instructions to advise whether she had a permanent or enduring physical or mental incapacity at the time of making the application.

5. Nevertheless, the application was refused on the basis of not meeting the requirements of section 21(3)(d) of the Act. The delegate wrote:

   … I am not satisfied that you meet the requirement at subsection 21(3)(d) of the Act as there is no evidence before me that you have a permanent or enduring physical or mental incapacity that means you are not capable of understanding the nature of your citizenship application, not capable of demonstrating a basic knowledge of the English language or not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at the time of your application.

6. I noted that the report on which Ms Al-Kaabi relied in her application was provided by Mr Onsy Mattar, a consulting psychologist who was not eligible pursuant to the Australian Citizenship Instructions (which applied at the time), to certify whether the Applicant had a permanent or enduring physical or mental incapacity at the time of making the application.

7. Ms Al-Kaabi was asked to provide a report from an eligible person, and at the hearing, tendered a report of Dr M Allam, a psychiatrist, who is a fellow of the Royal Australian and New Zealand College of Psychiatrists (Exhibit A2).

8. Also at the hearing, the Applicant confirmed she relied on the ground that due to a permanent or enduring mental incapacity at the time of making the application, she was not capable of demonstrating a basic knowledge of English language at that time.

9. I am satisfied that Ms Al-Kaabi met the requirements of section 21(3)(d)(ii) of the Act. Accordingly, I have set aside the decision under review, and remitted the matter to the Respondent for consideration of the remaining criteria under sections 21 and 24 of the Act. My reasons follow.

   ISSUE BEFORE THE TRIBUNAL

10. The issue in this matter is whether the Applicant had, pursuant to section 21(3)(d) of the Act, a permanent or enduring mental incapacity at the time she made her application for citizenship such that she was not capable of demonstrating a basic knowledge of the English language at that time.

    RELEVANT LEGISLATION

11. The relevant legislation in this matter is the Australian Citizenship Act 2007, in particular section 23(3)(d)(ii) which follows as relevant:

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

    …

    (d) has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:

    …

    (ii) is not capable of demonstrating a basic knowledge of the English language at that time; or

    …

    THE APPLICANT’S EVIDENCE AND SUBMISSIONS

12. Both Ms Al-Kaabi and her husband gave oral evidence before the Tribunal. Ms Al-Kaabi told me that she arrived in Australia in 2008, and that she performs home duties and looks after her children. She said that she has five children, one of whom lives in Iraq. She said that her youngest child is enrolled in kindergarten this year. She said that due to her lack of English she cannot communicate with her children’s teachers.

13. Ms Al-Kaabi told me that she attended one course of English in 2008, but that she dropped a second course because she was sick, and then became pregnant. She said that she neither studied English in Iraq, nor in Australia. When Ms Dejean, who appeared for the Respondent, put to Ms Al-Kaabi that she did not know whether she could learn English because she had not tried, the Applicant replied that she is tired and busy looking after her children.

14. Ms Al-Kaabi told me that she can drive a car, and has a licence to do so. She said that it was important for her to drive, as she could not just rely on her husband. She said that she undertook the tests for the licence in Arabic, and learned driving from a driving school instructor. Her husband taught her about street signs, she said. Ms Al-Kaabi said that she had failed the tests about ten times.

15. Ms Al-Kaabi told me that she forgets a lot of things, and attributes that to her depression. I noted that she could not, or would not recall how long she spent in appointments with Dr Allam, did not recall that she had provided a Statutory Declaration regarding health impediments to taking the English test for her citizenship, and said that although Dr Allam conducted tests, she could not recall what they were.

16. Ms Al-Kaabi provided a Statutory Declaration dated 30 May 2013 (Exhibit A1), in which a person who assisted her had written about her personal situation and lack of English. She was unable to tell me anything about the document, as she said that she had not read it, or had the content explained to her.

17. Mr Al-Kaabi, who remained in the hearing room while his wife was giving her evidence, informed the Tribunal that the same person who assisted his wife to complete the application form for citizenship, also wrote the Statutory Declaration for the Applicant. He explained that after they were told Mr Mattar’s report would not be recognised for the purpose of assessing whether the Applicant has a mental incapacity in regard to the citizenship application, they consulted Dr Allam.

    THE MEDICAL EVIDENCE

18. The Applicant provided reports of Mr Mattar (T5, dated 30 August 2012, and T6, dated 29 October 2012), in support of her being exempted from taking the citizenship test when she applied for citizenship in 2012. Mr Mattar diagnosed major depression [sic] disorder and impaired memory and concentration in his first report, and stress and anxiety-depressive disorder and adjustment disorder in the second. Those reports were not accepted by the Respondent who explained that Mr Mattar did not meet the specialist requirements outlined by citizenship policy which, in 2012, required evidence from a specialist who had to be a fellow of a specialist organisation as defined in schedule 4.3 of the Health Insurance Regulations 1975. For mental conditions such as Ms Al-Kaabi was alleging, the report had to be provided by a psychiatrist who was a fellow of the Royal Australian and New Zealand College of Psychiatrists.

19. Mr Al-Kaabi’s evidence was that following the refusal of citizenship by the Respondent, they consulted Dr Allam who, I have noted, is appropriately qualified, and whose report could be accepted for the purposes of the citizenship application. Dr Allam’s report dated 13 September 2013 was Exhibit A2. He diagnosed major depression, stating with further detail that she had seen a psychiatrist in Iraq, had been low in mood for years, and that her condition deteriorated after coming to Australia. He stated that Ms Al-Kaabi studied to year five in primary school in Iraq, and that all the studies were in Arabic with the exception of learning the English alphabet. He mentioned Ms Al-Kaabi undertaking only a few days of an English course in Australia. Dr Allam concluded that Ms Al-Kaabi does not speak or read English, and qualifies to be exempted from taking an English language test. He also stated that her depression was another factor for her poor concentration and inability to retain information or to study even in her Arabic language this makes her unable to study and retain information in any language and this makes her not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and the privileges of Australian citizenship.

20. On the other hand, Ms Al-Kaabi told me, that when the children get older she would like to return to learn English, and that she was aware of her responsibilities towards Australia. She told me that she attends at the psychiatrist every two to three months.

21. Dr Allam’s records were summonsed, and indicated that he had seen the Applicant on four occasions during 2013 (Exhibit R2). The medical notes were very minimal, there was little history taken, and I was satisfied they did not disclose he had carried out any tests, cognitive or otherwise. I noted he prescribed anti-depressant medication on the first occasion he saw Ms Al-Kaabi in March 2013.

    THE RESPONDENT’S SUBMISSIONS

22. Ms Dejean made submissions about section 21 of the Act. She indicated that in discussion with the Applicant and her husband, she had ascertained that their main focus was section 21(3)(d)(ii). In that regard I noted that a person is eligible to become an Australian citizen if the Minister is satisfied that the person meets the requirements of sections 21(3)(a), (b), and (c) (not in question in this case), and section 21(3)(d), in that the person has a permanent or enduring physical or mental incapacity at the time of making the application leading to the following:

    (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.

23. Ms Dejean submitted that no weight should be given to Exhibit A1, the Applicant’s Statutory Declaration because Ms Al-Kaabi’s evidence was that she had not written it, or read it after it was prepared for her.

24. Ms Dejean also submitted that the report of Mr Mattar was unacceptable due to his qualifications (as he did not have the qualifications specified by the policy), and that little weight should be given to the report of Dr Allam, whom she agreed however, was qualified to provide a report. She submitted that he did not see the Applicant until approximately six months after she lodged her application, and submitted that his report was difficult to interpret and lacked detailed support for the assertions he made. Ms Dejean also emphasised that there was no mention in Dr Allam’s report of any testing undertaken.

25. Ms Dejean submitted that the application should be dismissed on the basis that the criteria in section 21(3)(d) are not met, but if the Tribunal found they were, then the matter should be remitted to the delegate for determination of the remaining criteria under section 21 and 24 of the Act.

    THE TRIBUNAL’S CONCLUSIONS

26. In order to come to a conclusion about whether the Applicant satisfies the requirements in section 21(3)(d) of the Act, I have taken the evidence, legislative requirements and the relevant Australian Citizenship Instructions (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634), into account. There is no disagreement that Ms Al-Kaabi meets the requirements of sections 21(3)(a), (b) and (c).

27. I have noted Ms Al-Kaabi’s evidence that she relies upon to support her contention that she had a permanent or enduring mental incapacity at the time of making the application for citizenship on 7 September 2012. She also relies on section 21(3)(d)(ii) which is that she was not capable of demonstrating a basic knowledge of the English language at the time of the application.

28. Ms Al-Kaabi’s evidence was that she attempted English classes, but did not persevere because she was sick, and then pregnant. She claims to be unable to concentrate, and says she forgets a lot of things due to her depression. On the other hand, she is licensed to drive a motor vehicle although she says she did the test in Arabic, and that her husband taught her the road signs. She told me that she failed the test about ten times before obtaining her licence.

29. I give no weight to the Statutory Declaration produced for Ms Al-Kaabi which she says she did not read, and the content of which she said she has no knowledge.

30. I must also consider whether the diagnosis of major depression made by Dr Allam, and the consequences he has discussed, amount to a permanent or enduring mental incapacity on 7 September 2012 when Ms Al-Kaabi made her application for citizenship. There is no question Dr Allam is qualified in accordance with the requirements set out in the relevant Australian Citizenship Instructions to provide a report for these purposes. Ms Al-Kaabi had not consulted him at the time of the departmental refusal of her citizenship application because she had relied on Mr Mattar’s reports which were ultimately not accepted.

31. I found there were difficulties with Dr Allam’s report, in that he only saw the Applicant some six months after she made her application. I accept that the reason for the referral at that point was that the reports of Mr Mattar, who is not appropriately qualified as required by the Australian Citizenship Instructions, were not accepted by the Respondent. However, Dr Allam did not provide a detailed history, or as far as is discernible, undertake cognitive testing.

32. He also stated that her depression was another factor in her poor concentration and inability to retain information or to study even in Arabic – this makes her unable to study and retain information in any language.

33. I considered whether Ms Al-Kaabi’s incapacity due to her depression was permanent or sufficiently long-term to be enduring. I have noted from the Australian Citizenship Instructions that an enduring incapacity is one for which there cannot be a predicted recovery, or where there is, it is long-term, and it would be unreasonable to expect the person to recover before becoming eligible for Australian citizenship.

34. On the basis of Ms Al-Kaabi’s evidence and that of Dr Allam, I am satisfied that her incapacity due to her depression is, if not permanent, sufficiently long-term to be enduring. I accept Dr Allam’s comment that she had seen a psychiatrist in Iraq, had been low in mood for years, and that her condition deteriorated after coming to Australia in 2008.

35. I am also satisfied on the basis of Ms Al-Kaabi’s evidence that she undertook English studies for a short time only, and that due to family commitments, she now lacks the time and the ability to concentrate in order to continue. I accept that as she is mainly at home with home duties, her English knowledge accordingly remains minimal. I am satisfied that Ms Al-Kaabi was not capable of demonstrating a basic knowledge of the English language at the time of the application for citizenship due to her condition.

36. Accordingly, I find that Ms Al-Kaabi meets the requirements of section 21(3(d)(ii) of the Act. I set aside the decision under review and remit the matter to the Respondent for consideration of the remaining criteria under sections 21 and 24 of the Act.

    DECISION

37. The Tribunal is satisfied that Ms Al-Kaabi meets the requirements of section 21(3)(d)(ii) of the Act and accordingly sets aside the decision under review and remits the matter to the Respondent for consideration of the remaining criteria under sections 21 and 24 of the Australian Citizenship Act 2007.

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

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

Associate

Dated 30 January 2014

Date of hearing	20 January 2014
Applicant	In person
Solicitor for the Respondent	Ms H Dejean, Australian Government Solicitor