Skaf v Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 429
•24 June 2016
Skaf and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 429 (24 June 2016)
Division
GENERAL DIVISION
File Number(s)
2015/1585
Re
Rajaa Skaf
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 24 June 2016 Place Sydney The decision under review is affirmed.
.....................[sgd]...................................................
Ms N Isenberg, Senior Member
CATCHWORDS
CITIZENSHIP – citizenship test exemption – whether the applicant suffered from a permanent or enduring physical or mental incapacity – evidence of mental incapacity –medical and psychologist reports with contradictory diagnoses – tribunal not satisfied that there is evidence of mental incapacity – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth), s 21(3)(d)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Khodeir and Minister for Immigration and Border Protection [2015] AATA 499
Laalaa and Minister for Immigration and Border Protection [2015] AATA 579
SECONDARY MATERIALS
Australian Citizenship Instructions
Citizenship Policy
REASONS FOR DECISION
Ms N Isenberg, Senior Member
24 June 2016
BACKGROUND
1.The applicant, Rajaa Skaf, is a citizen of Lebanon. She is a permanent resident of Australia, having first come here on a spouse visa in 2006.
2.On 15 December 2014, she lodged an application for Australian citizenship. In the application, she indicated that she suffered from ‘a permanent or enduring physical or mental incapacity’.
3.In support of her application the Applicant provided a medical report from Dr Ayman Abraham, her General Practitioner, dated 30 January 2015 and medical reports from Dr Mahmoud Abu-Arab, clinical psychologist dated 22 April 2014 and 8 October 2014 and 8 December 2014.
4.On 20 February 2015 the Applicant's application for citizenship was refused on the basis that the delegate was not satisfied that the Applicant met the requirement in s.21(3)(d) of the Australian Citizenship Act 2007 ("Act").
5.The applicant seeks review of that decision.
RELEVANT LEGISLATION AND POLICY
6.The applicant’s eligibility for Australian citizenship is to be assessed against s.21(3) of the Act, which relevantly provides:
(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:
(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…
7.A person who satisfies the requirements in s.21(3) of the Act does not have to satisfy the generally applicable ‘knowledge’ requirements set out in s.21(2)(d)-(f) of the Act. In practical terms, s.21(3) operates to exempt persons who satisfy the provision from being required to pass the citizenship test (cf. s.21(2A) of the Act).
8.The Australian Citizenship Instructions (‘ACIs’) provide policy guidance to decision-makers in undertaking decision-making functions under the Act. From 1 June 2016 the ACIs were updated but, in substance, so far as is relevant to the present matter, remain the same. Whilst I am not bound to apply policy guidelines (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409) I may do so and, indeed, the Tribunal will usually apply the relevant policy unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645.
9.The policy addresses s.21(3) of the Act. In relation to s.21(3)(d), the policy states:
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.
10.As to the evidence that applicants claiming to have a mental incapacity may provide, the policy states:
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.
ISSUE
11.Does the applicant satisfy s.21(3)(d) of the Act, that is, did she have a permanent or enduring mental incapacity at the time she made her application for citizenship?
Applicant’s evidence
12.The applicant, who was unrepresented, gave evidence with the assistance of an interpreter.
13.The Applicant said she wanted to be an Australian citizen because she ‘loves Australia’ and it is fair and safe country, and that her 2 children, aged 22 and 8, can be protected from war. She said it was her intention to remain in Australia if she were to be granted citizenship. She said she did not know anything about rights and responsibilities attaching to Australian citizenship.
14.As to her level of education, she said in her evidence that she had been schooled for only 3 or 4 years from age 6, until the war (in Lebanon) had intervened. She said that in the years between leaving school and coming to Australia (which I calculated to be not less than 20 years) she had only engaged in paid work for about a year. She had worked, she said, as a shop assistant in a handbag shop, only wrapping purchases and not dealing with the customers; otherwise she engaged in home duties. The only paid work she had undertaken in Australia was for about a year, when she had worked in a laundry where all the staff spoke Arabic.
15.The Applicant said that she had wanted to study when she came to Australia but her husband was ill from the time she arrived. She undertook only one month of English classes, learning only how to write her name and address. Since her husband’s death, 2 years ago, she said she has not been well enough to resume studies. She said she had been ill ‘for a long time’ but had become worse after her husband’s death and the motor vehicle accident in October 2015 in which she was injured. Further, she has a sick child.
16.She also said she does not know her way around so could not go to classes by herself. She said that Centrelink is now requiring her to undertake English studies in order to continue her benefits. She lives in Padstow. She said the Centrelink office she attends is in Bankstown, as is the English course she is to undertake. The previous English language course was also based in Bankstown. She could not explain why she would be able to undertake the English course at Bankstown as Centrelink requires, but not be able to resume her previous classes, which were also in Bankstown.
17.In relation to her Centrelink benefits, she said, her husband would assist her in making the withdrawals from the bank. Since his death she might just ask someone - even a stranger - at the bank to help her. She said she was unconcerned about giving her account access details to a stranger.
18.She said in cross-examination that her sons speak fluent English, and in fact, the younger son speaks better English than Arabic. Nonetheless they manage to communicate with each other, notwithstanding that she speaks almost no English at all. She denied understanding any of the questions being put to her by the solicitor for the Respondent, although, she responded to a couple of straightforward questions which I put to her, without waiting for them to be translated.
19.She agreed that her elder son was seeking citizenship but noted that he had failed the test. As to whether they could study together, she said that for every day she might feel well enough to study she has 10 days where she could not.
20.She has no family here and has sole responsibility for her children, although her elder son is now an adult. She has one friend, who is an Australian citizen, and who accompanied her to the hearing. She said her friend can explain about being an Australian citizen but it takes a day or 2 for her to comprehend what she is told.
21.In cross-examination the Applicant did not recall the detail of the testing and questioning by Dr Banks, who she had seen at the request of the Respondent and who had seen her with an interpreter. In particular, she did not recall her answers to questions about her schooling which, from Dr Banks’ report which is discussed below, provided a different account to the evidence she gave before me.
Reports of Dr Abu-Arab, clinical psychologist
22.The Applicant provided reports from Dr Abu-Arab, dated 22 April 2014, 8 October 2014, 8 December 2014 and 11 June 2015.
23.In her evidence the Applicant said that prior to seeing Dr Abu-Arab she had not previously consulted any mental health practitioner either in Australia or in Lebanon. The Applicant said she no longer attends Dr Abu-Arab, because he is too far away. His rooms are in Granville.
24.In all, Dr Abu-Arab wrote, he saw the Applicant on 10 occasions between October 2013 and November 2014. The doctor applied a Mini Mental State Examination (‘MMSE’) to screen her cognitive abilities. Applying the Diagnostic and Statistical Manual of Mental Disorders, DSM IV, but without specifically addressing the diagnostic criteria, he diagnosed Major Depressive Disorder. According to Dr Abu-Arab, Ms Skaf’s condition is permanent, enduring and long-lasting because it has been present for many years, though it was unclear how he came to a view about duration, given that he had only seen her in recent times. Dr Abu-Arab noted that the Applicant reported symptoms of post-traumatic stress disorder, but the doctor did not make that diagnosis.
25.In his report dated 8 October 2014, Dr Abu-Arab wrote that Ms Skaf was unable to learn English and is also illiterate in Arabic. Therefore, he wrote, she is unable to read and learn new information. Also he considered she is unable to retain new information due to her psychiatric condition. He wrote that her condition would affect her ability to learn and retain new material/information. His reports suggest that the Applicant’s poor English language skills were primarily explained by the fact that she was illiterate in her native language. The reports also note that the Applicant had only attended two months of English language studies since arrival in Australia.
26.In his report dated 8 December 2014, Dr Abu-Arab again suggested that the Applicant’s poor literacy in her native language is the main difficulty she faces in learning English. In particular, he wrote:
I can attest that people who are illiterate or semi-illiterate in their native language find it extremely difficult to learn reading and writing in a new language, like in the case of my client. Based on that, I came to the conclusion that it is unlikely she would benefit from such training.
27.In his final report Dr Abu-Arab repeated his view that the Applicant is unable to undertake the citizenship test due to a lack of literacy and numeracy skills in English, and due to her psychiatric condition and that in his opinion, the Applicant’s condition would affect her ability to learn and retain new material/information.
Reports of Dr Abraham, General Practitioner
28.The Applicant provided reports by her GP, Dr Abraham dated 30 January 2015, 13 March 2015 and 15 December 2015.
29.In his first report Dr Abraham diagnosed the Applicant with Schizophrenia. He considered the condition to be permanent with variable symptoms, even when medicated. He also wrote that the Applicant’s condition would affect her mental capacity to participate in and successfully perform the citizenship test. He also diagnosed Depression/Anxiety disorder although he did not consider that to be a permanent condition, in contrast to Dr Abu-Arab.
30.In the latest report Dr Abraham wrote that the Applicant suffers chronic depression and anxiety disorder and that her medication for Schizophrenia causes some drowsiness and poor concentration. He referred to the motor vehicle accident in which she had been involved in October 2015 and that this caused post-traumatic stress disorder, further affecting her memory and concentration. Her conditions, he wrote, make it difficult for her to undergo the citizenship test.
Report of Zena Nikro, psychologist
31.The Applicant provided a report from Ms Nikro dated 10 December 2015. Ms Nikro wrote that the Applicant had been referred to her by Ms Skaf’s GP, following her involvement in the motor vehicle accident. She noted the Applicant’s low mood, high anxiety, insomnia, nightmares, fatigue, physiological complaints, loss of pleasure in previously enjoyed activities, excessive rumination and avoidance behaviours. She considered Ms Skaf to be suffering post-traumatic stress disorder.
32.The Applicant reported an inability to retain information, and impaired memory. Ms Nikro observed a lack of concentration. The Applicant did not appear to her to be capable of demonstrating basic knowledge of English. She assessed her as incapable of demonstrating adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.
Report of Dr Banks, clinical psychologist
33.At the Respondent’s request the Applicant participated in a psychological evaluation by Dr Gary Banks, clinical psychologist. She attended two sessions, consisting of a clinical interview on 7 August 2015, lasting approximately 3 hours, and a second clinical interview with psychometric testing undertaken on 9 September 2015, over a period of approximately 4 hours. Dr Banks also reviewed the reports of Dr Abu-Arab and Dr Abraham.
34.Dr Banks set out his evaluation of the Applicant's psychological condition in a 19-page report dated 30 September 2015 (as amended on 12 November 2015). His key finding was that the Applicant does not meet criteria for any diagnosable mental disorder including Major Depressive Disorder or Schizophrenia, as suggested by Dr Abu-Arab and Dr Abraham, respectively. Although he did not have Ms Nikro’s report before him, his finding that the Applicant suffers no diagnosable mental disorder is sufficiently broad to encompass Ms Nikro’s ‘diagnosis’ of post-traumatic stress disorder. He concluded that there was no evidence to indicate that the Applicant is suffering from a permanent or enduring physical or mental incapacity, nor that she has been suffering from such a condition that would mean that she is not capable of satisfying the knowledge requirements.
35.Ms Skaf reportedly told Dr Banks that she completed primary school and left school when she was 16 due to the war. The doctor reported that she stated that she was not good at school and failed several subjects, and repeating year 3, dropping out for a few years before returning again. With further prompting, she reportedly said she had enjoyed ‘sports’ and ‘history’ subjects, but not mathematics. This contrasts to the history she gave in her evidence and what she had reportedly told Dr Abu-Arab, as noted in his report of 8 October 2014.
36.Dr Banks wrote that, as part of the clinical assessment, Ms Skaf was assessed using a battery of standardised measures to assess her current level of cognitive functioning and capacity to learn new information. None of these tests, he reported, required the ability to read or write in either English or Arabic, and an accredited interpreter facilitated the administration of the tests. Ms Skaf’s ability to learn new information and assess her problem-solving abilities was evaluated using measures that were said to be recognized for being more ‘culture-fair’ than most intellectual assessment tests. The tests administered, he wrote, do not rely on verbal capacity, and those measures that did require verbal capacity were administered in Arabic.
37.At [36] of the report, in respect of the Applicant’s responses during the psychometric testing, Dr Banks observed that the Applicant’s pattern of responding for one of the tests was… indicative that she may have been deliberately responding incorrectly while mindful of the correct response. Dr Banks wrote at length of his conclusion that the Applicant had a general lack of motivation in engaging with the psychological tests.
38.Dr Banks was of the view that the Applicant’s current psychological profile would not be sufficient to satisfy s.21(3)(d). He noted that the Applicant had already acquired some understanding of basic English and demonstrated some capacity to learn new information when given encouragement to remain on the task at hand and to apply herself with greater effort: at [44].
39.Dr Banks’ observation of the Applicant’s language skills was inconsistent with Dr Abu-Arab's conclusion that, the Applicant lacked basic knowledge of the English language. He wrote that during the two days of his assessment Ms Skaf’s knowledge of English was sufficient to allow her to follow verbal instructions to find the bathroom and on several occasions she responded to Dr Banks prior to the question being translated. Similarly, during psychometric testing, she was noted to say a few words in English, exchanging pleasantries and engaging in some small talk about cigarettes. Ms Skaf told Dr Banks that she caught the bus to Centrelink independently and on a fortnightly basis, and he thought it is reasonable to conclude that such an activity would require a degree of learning information.
40.Dr Banks was critical of the reliance of Dr Abu-Arab’s reliance on the MMSE to assess the Applicant’s cognitive abilities. He wrote that the MMSE is a brief ten-minute screening test that is used to measure cognitive impairment in relation to orientation as to time and place, short- and long-term memory, registration, recall, constructional ability, language and the ability to understand and follow commands. He noted the MMSE is often used in hospital settings as a screening tool to identify cognitive deficits in patients with dementia. Further, as a screening tool the MMSE is used conjointly with other measures of cognitive abilities. He considered the MMSE to be a suboptimal measure of cognitive abilities when used in isolation, and that it is not possible to derive an individual's overall level of intellectual ability from the administration of an MMSE.
CONCLUSIONS
41.I have considered, in addition to the Applicant’s evidence, that of Dr Abu-Arab, clinical psychologist, Dr Abraham, the Applicant’s GP, and Ms Nikro, psychologist, who provided reports, on the one hand, and the report of Dr Banks, clinical psychologist, on the other.
The Applicant claims she received only minimal English instruction on arrival in Australia and had to abandon classes to take care of her husband. She claims that, since her husband’s death she has been too unwell to resume English classes, although appears to have had to accept that, if her Centrelink benefits are to continue, she must now undertake classes. Dr Banks reported that in his opinion, Ms Skaf’s knowledge of English was greater than she was willing to admit. This was my observation also.
43.The Applicant also claims that she is unable to learn because she is illiterate in her own language and that she had minimal schooling. I note she has given inconsistent accounts of the extent of her education in Lebanon.
44.Dr Abu-Arab’s reports do not articulate a clear basis for the diagnosis and opinions expressed in them. In particular, it is unclear on what basis, he reached the diagnosis of Major Depressive Disorder. Dr Abu-Arab’s reports suggests that the Applicant's claimed psychiatric condition affects her ability to learn English but that a major obstacle the Applicant faced at the time was in fact her poor literacy. Even if I were to accept this assessment, the Applicant’s condition does not reach the threshold in s.21(3)(d) of the Act because the Applicant does not appear to have had an incapacity that meant that she was incapable of satisfying the knowledge requirements. In my view it is not sufficient that her claimed condition merely affects her ability to satisfy the requirements.
45.I note that Dr Abu-Arab wrote that he had administered a modified version of the MMSE, which is a screening, not a diagnostic test, and is administered in a short period of time. The Tribunal noted the limitations of the MMSE in Khodeir v Minister for Immigration and Border Protection [2015] AATA 499 and Laalaa v Minister for Immigration and Border Protection [2015] AATA 579. I note Dr Banks’ evidence about the test. In contrast, I am satisfied that Dr Banks’ conclusions were as a result of his extensive testing, and his findings, which indicated that the Applicant’s perceived impaired abilities were inconsistent with her actual performance of some of the test tasks, were based on objective measures.
46.There was no evidence that Ms Nikro had administered any tests in coming to her view. I prefer the evidence of Dr Banks regarding the Applicant’s capacity. Further, I also prefer Dr Banks’ evidence to that of the Applicant’s General Practitioner, Dr Abraham, who diagnosed the Applicant with Schizophrenia. Although the Applicant’s evidence was that she is best able to confide in Dr Abraham, there was no evidence that he has expertise in psychiatry or psychology. Furthermore, Dr Abraham’s diagnosis of Schizophrenia is inconsistent with all other medical assessments, including those of the Applicant’s treating clinical psychologist, Dr Abu-Arab, and psychologist, Ms Nikro.
47.I have placed significant weight on Dr Banks’ very comprehensive report, produced following extensive psychological assessment and testing.
48.Based on the totality of the evidence I am not satisfied that at the time of the Applicant's citizenship application she had a permanent or enduring physical or mental incapacity that meant that she was not capable of:
·Understanding the nature of the 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.
49.Instead, the evidence suggests that the Applicant’s inability to satisfy the knowledge requirements is due primarily to poor literacy and a lack of effort. Accordingly, the requirements in s.21(3)(d) of the Act are not met.
50.Accordingly, I am unable to find that the Applicant met the requirements of s.21(3)(d) of the Act at the time of her application for citizenship.
51.It is open to the Applicant, of course, to re-apply for citizenship and undertake the necessary test.
DECISION
52.The decision under review is affirmed.
I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
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Associate
Dated 24 June 2016
Date(s) of hearing 27 May 2016 Applicant
Solicitors for the Respondent
In person
Priscilla Blackadder, Sparke Helmore
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