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

[2020] AATA 667

Slafa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 667 (27 March 2020)

Division:GENERAL DIVISION

File Number:          2018/6999

Re:Muntaha Slafa

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:27 March 2020

Place:Sydney

The Tribunal affirms the decision under review.

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

Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – refuse to approve application – whether applicant has a permanent or enduring physical or mental incapacity – citizenship test – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

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

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

Laalaa v Minister for Immigration and Border Protection (Citizenship) [2015] AATA 579

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Citizenship Policy (1 June 2016)

Australian Citizenship Procedural Instructions – CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity

REASONS FOR DECISION

Dr L Bygrave, Member

27 March 2020

INTRODUCTION

1. The applicant, Ms Muntaha Slafa, is a citizen of Iraq. She first arrived in Australia on 17 July 2013 and currently holds a refugee (subclass XB-200) permanent visa.

2. On 9 August 2017, Ms Slafa applied for Australian citizenship by conferral (other situations) under section 21 of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). In her application, Ms Slafa declared that she had ‘a permanent or enduring physical or mental incapacity’.[1]

   [1] Exhibit T-T3, page 19.

3. This application was refused by a delegate of the Minister for Home Affairs (the Minister)[2] on 15 November 2018, on the basis that Ms Slafa did not meet the requirement in paragraph 21(3)(d) of the Citizenship Act for a permanent or enduring physical or mental incapacity at the time she made her application.

   [2] The relevant Minister is now named the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

4. On 27 November 2018, Ms Slafa applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review.

5. The application was heard by the Tribunal in Sydney on 27 February 2020. Ms Slafa had legal representation; she attended the hearing and gave oral evidence in person with the assistance of an interpreter of the Arabic language.

   RELEVANT LEGISLATION

6. Subsection 21(1) of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to subsection 24(1) of the Citizenship Act:

   If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

7. Relevant to this application, subsection 21(2) of the Citizenship Act sets out the general eligibility requirements for Australian citizenship as follows:

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

   …

   (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; …

8. Pursuant to subsection 21(2A) of the Citizenship Act, paragraphs 21(2)(d), (e) and (f) of the Act are met if, and only if, a person has sat and successfully completed a citizenship test.

9. Subsection 21(3) of the Citizenship Act sets out the following requirements for a person who has a 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:

   …

   (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; …

10. In practical terms, paragraph 21(3)(d) of the Citizenship Act operates to exempt persons who have a permanent or enduring physical or mental incapacity from being required to sit and pass a citizenship test: see paragraphs 21(2)(d), (e) and (f) and subsection 21(2A) of the Citizenship Act.

    Citizenship Policy

11. The Citizenship Policy offers guidance on the interpretation and application of the Citizenship Act. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[3]

    [3] [1979] AATA 179; (1979) 2 ALD 634.

12. The Citizenship Policy provides the following guidance on the evidence that is required to establish that a person has a permanent or enduring physical or mental incapacity:

    …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.

    …

    Mental incapacity

    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.[4]

    [4] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 7, pages 71-73.

    Australian Citizenship Procedural Instructions (CPIs)

13. Further policy guidance is provided by the Australian Citizenship Procedural Instructions (CPIs), which detail operational instructions and supplement the Citizenship Policy. CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity (CPI 2) was issued on 2 March 2019 with the purpose to ‘identify the legal requirements, and related policy and procedures, that apply to the assessment of an application’ for Australian citizenship under subsection 21(3) of the Citizenship Act.

14. Relevant to this application, CPI 2 outlines that:

    When assessing whether a person suffering from long-term depression would have an enduring incapacity, one consideration would be whether the depression can be treated, and to what extent the person is incapacitated as a result of the depression.[5]

    [5] CPI 2 – Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity, section 3.4.

    EVIDENCE OF MS SLAFA

15. Ms Slafa provided oral evidence at the Tribunal hearing. In her evidence, Ms Slafa confirmed that she completed 12 years of education in Iraq, including six years at primary school, three years at ‘middle school’ and three years at ‘preparatory school’, and is ‘highly literate’ in Arabic.[6] Ms Slafa also spoke briefly about her experiences in Iraq that led to her and her family leaving Iraq in 2010 to go to Jordan before they came to Australia in 2013.

    [6] Oral transcript, 27 February 2020, pages 13 and 27.

16. Ms Slafa was able to explain to the Tribunal the process she undertook to obtain her New South Wales (NSW) driver’s license, which included her successfully and independently completing the ‘L’s test’ on a computer in Arabic, and then passing the driving test in about 2014. She said she was ‘already driving in Iraq, so [she] knew how to drive’.[7]

    [7] Oral transcript, 27 February 2020, page 11.

17. Ms Slafa also told the Tribunal the reasons she applied for Australian citizenship (‘…it’ll make me feel like I belong’) and her responsibilities as a citizen (‘…this will be my country. I will love it. I won’t betray it and I will never do anything illegal’).[8]

    MEDICAL EVIDENCE

    [8] Oral transcript, 27 February 2020, page 12.

    Dr Sanaa Guirguis (general practitioner)

18. In a written report dated 4 August 2017 to support Ms Slafa’s application for citizenship, Dr Guirguis set out that Ms Slafa suffers from ‘multiple medical problems’ that include ‘major depressive disorder with psychotic symptoms’ and ‘schizophrenia symptoms’.[9] Dr Guirguis stated that Ms Slafa has ‘[r]ecently visited [Dr Guirguis] repeatedly suffering from worsening of her memory and concentration due to her medical condition as well as the high dose of antipsychotic medications’, and opined Ms Slafa’s ‘condition is permanent and long lasting’ and ‘she doesn’t have the basic knowledge of the English language to enable her to learn and retain information to pass the Citizenship exam’.[10]

    [9] Exhibit T-T3, page 36.

    [10] Exhibit T-T3, page 37.

19. Dr Guirguis’ medical records for Ms Slafa were produced under summons and are also before the Tribunal. These include Dr Guirguis’ clinical records from her appointments with Ms Slafa for the period from 7 August 2013 (Ms Slafa’s first appointment) to 9 July 2019. Relevantly, at the date of Dr Guirguis’ letter to support Ms Slafa’s application on 4 August 2017, Dr Guirguis’ clinical records stated that Ms Slafa presented with symptoms of ‘mild stress’ and a skin condition.[11] 

    Other reports – Dr Leo Tsang (consultant psychiatrist) and Dr Samir Benjamin (consultant psychiatrist)

    [11] Exhibit R-TB4, page 67.

20. Dr Guirguis’ medical records for Ms Slafa produced under summons also contained reports written by Dr Tsang dated 26 September 2015 and Dr Benjamin on 23 November 2015.

21. Dr Tsang reported that Ms Slafa presented ‘with symptoms and mental state very different from those reported in her psychologist’s reports and he ‘was at a loss to explain how she had not disclosed these symptoms’.[12] He decided to defer a diagnosis.

    [12] Exhibit R-TB4, page 106.

22. In his report, Dr Benjamin opined that Ms Slafa ‘does not appear to be suffering with a diagnosable psychiatric disorder’ and ‘her presentation is consistent with malingering.’[13]  

    [13] Exhibit R-TB4, page 101.

    Dr Mahmoud Abu-Arab (clinical psychologist)

23. Dr Abu-Arab provided written reports on 24 July 2017 and 29 October 2018 to support Ms Slafa’s application.

24. In his report dated 24 July 2017, Dr Abu-Arab briefly outlined Ms Slafa’s personal history and provided a diagnosis of chronic major depression and chronic post-traumatic stress disorder ‘according to the DSM’ and agoraphobia.[14] Dr Abu-Arab opined that Ms Slafa’s ‘attention and memory have been severely affected as a result of…traumatic events’ and stated that her ‘condition is permanent and long lasting’.[15] He recommended that Ms Slafa be exempted from completing a citizenship test because:

    …she does not feel confident to attend the Citizenship Knowledge Test due to her mental condition as well as due to illiteracy in English. I believe that her current psychiatric condition…would affect her ability to learn and retain new material/information…

    [S]he doesn’t have the basic knowledge of the English language to enable her to learn and retain information, such as the information required to pass the Citizenship exam.[16]

    [14] Exhibit T-T3, page 39.

    [15] Exhibit T-T3, page 40.

    [16] Exhibit T-T3, page 40.

25. In response to questions from the Department of Home Affairs, Dr Abu-Arab provided a medical letter on 29 October 2018 in which he wrote that Ms Slafa has ‘basic reading and writing skills in Arabic but…is semi-illiterate in English. Therefore [he] came to the conclusion that her condition is permanent and she has enduring incapacity’.[17] Dr Abu-Arab further opined that Ms Slafa’s psychiatric condition of chronic major depression and chronic post-traumatic stress disorder ‘affected her memory and her capacity to learn and retain new information’ and she would be unable ‘to learn reading and writing any second language’.[18]

    [17] Exhibit ST-ST3, page 169.

    [18] Exhibit ST-ST3, page 169.

26. The Tribunal also has regard to Dr Abu-Arab’s medical records for Ms Slafa that were produced under summons and comprises five pages of hand-written notes. These notes show a brief outline of Ms Slafa’s personal history and a record of appointments regarding Ms Slafa making various government applications for housing and financial support, and her application for citizenship. There is no record of Dr Abu-Arab completing any formal psychological assessment of Ms Slafa; and he produced extremely brief notes about any treatment Ms Slafa has undertaken.

    Mr Thomas O’Neill (clinical psychologist)

27. For the purpose of this application, Ms Slafa was referred by the Respondent’s legal representative to Mr O’Neill for psychological assessment in relation to her mental health. Mr O’Neill produced written reports dated 31 May 2019 and 12 August 2019, and gave oral evidence at the Tribunal hearing.

28. Mr O’Neill’s report on 31 May 2019 provided a detailed assessment of Ms Slafa’s general presentation during her mental health examination, her personal and occupational history, and her current psychological symptoms, difficulties and treatment. Mr O’Neill concluded the following from his assessment of Ms Slafa:

    Given the significant inconsistencies in reporting of symptoms, the marked discrepancies in diagnoses between the general practitioner and clinical psychologist, as well as Ms Slafa’s significantly unusual presentation, it was not possible from this assessment alone to determine whether in fact there is any psychiatric diagnosis.

    This is not to preclude the possibility that there may be significant mental health issues, and Ms Slafa’s life history and complaints would suggest there could be a diagnosis… However, the extreme memory problems, exaggeration of cognitive complaints, and the manner of presenting herself during assessment was not consistent with individuals suffering from mental health conditions…[19]

    [19] Exhibit R-TB4, page 152.

29. After reviewing further documents from Dr Abu-Arab and Dr Guirguis, Mr O’Neill provided a second report on 12 August 2019, in which he concluded:

    Given the inconsistencies reported, the psychiatrist’s view as to malingering, and the various concerns already identified pertaining to the treatment providers’ reports, there is insufficient information at this moment in time to support the presence of a permanent or enduring mental incapacity…

    It would appear from her treatment providers’ notes that she did attend English classes, although it was uncertain how long she attended these and what her skill level was by the time she completed the program. Ms Slafa communicated to me that she excelled at languages and secondary school in Iraq. The interpreter also noted that she was fluent and could understand Arabic at an adult level.[20]

    [20] Exhibit R-TB6, page 190.

30. At the hearing, Mr O’Neill told the Tribunal he interviewed Ms Slafa for three hours with the assistance of an interpreter to try and understand her mental health. Mr O’Neill said there was ‘a lot of unusualness’ to Ms Slafa’s presentation: he observed that he had ‘rarely’ seen the level of evasiveness shown by Ms Slafa; there were ‘a lot of inconsistencies’ in her presentation; and ‘significant differences’ in her reporting of psychotic symptoms.[21] Mr O’Neill observed ‘evidence of feigning spectrum behaviour’ in Ms Slafa’s presentation.[22] Finally, Mr O’Neill opined more broadly that severe psychiatric conditions ‘do not preclude capacity to learn’ but ‘may lead to compromised learning’.[23]

    [21] Oral evidence, 27 February 2020, page 30.

    [22] Oral evidence, 27 February 2020, page 33.

    [23] Oral evidence, 27 February 2020, pages 37-38.

    CONSIDERATION

31. The issue for determination by the Tribunal is whether Ms Slafa meets the requirements for a permanent or enduring mental incapacity at the time she made her application for Australian citizenship pursuant to paragraph 21(3) of the Citizenship Act.

32. As set out in the Citizenship Policy, this requires Ms Slafa to produce evidence from an appropriately qualified medical practitioner that she has a permanent or enduring mental incapacity that means she is not capable of understanding the nature of her application for citizenship, or demonstrating a basic knowledge of the English language, or demonstrating an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.

33. It is clear from the evidence set out at paragraphs 18 to 30 that there are significant differences in the medical practitioner’s reports that are before the Tribunal. I now consider this evidence in view of the requirements of the Citizenship Act and Citizenship Policy.

34. In relation to the medical report by Dr Guirguis on 4 August 2017, I am satisfied that Dr Guirguis is a general practitioner and is not a ‘specialist’ defined in the Citizenship Policy. I also note that Dr Guirguis’ description of Ms Slafa in her report dated 4 August 2017 is inconsistent with her contemporaneous clinical records. For these reasons, I place minimal weight on Dr Guirguis’ evidence.

35. I am satisfied that Dr Abu-Arab is a qualified clinical psychologist and meets the appropriate qualification requirements in the Citizenship Policy. I find that Dr Abu-Arab’s report on 24 July 2017 refers to Ms Slafa not feeling confident to sit the citizenship test ‘due to her mental condition’ and because she is illiterate in English. However, there is no explanation by Dr Abu-Arab about the reasons for Ms Slafa’s illiteracy in English or why her psychiatric condition affects her ability to learn and retain information. On the basis of this report, and the report of 29 October 2018, I am unable to find that Ms Slafa has a permanent or enduring mental incapacity in accordance with paragraph 21(3)(d) of the Citizenship Act.

36. I also have substantial concerns with the credibility of Dr Abu-Arab’s psychological assessment of Ms Slafa, as set out in his reports and clinical notes. In particular, I find there is no evidence before the Tribunal that Dr Abu-Arab has either completed a formal psychological assessment of Ms Slafa or continues to provide treatment to Ms Slafa on a regular basis as required by the Citizenship Policy. Rather, I note Dr Abu-Arab’s brief clinical records refer mostly to Ms Slafa making appointments to obtain reports for government applications for housing and financial support, and for citizenship. I also note there are previous decisions made in the Tribunal that outline similar concerns with reports produced by Dr Abu-Arab.[24]

    [24] Butrus and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 239 at [44]-[48]; Laalaa v Minister for Immigration and Border Protection (Citizenship) [2015] AATA 579 at [40]; Khodeir vMinister for Immigration and Border Protection (Citizenship) [2015] AATA 499 at [21]-[22].

1. I am further satisfied that Dr Abu-Arab’s conclusions about Ms Slafa’s psychological conditions are not consistent with the findings in the reports by either Dr Tsang, Dr Benjamin or Mr O’Neill. Dr Abu-Arab’s conclusions are also inconsistent with the capacity of Ms Slafa to successfully complete a test on a computer for her driver’s license (albeit in 2014) and to clearly articulate at the Tribunal hearing her reasons for applying for Australian citizenship and her responsibilities as an Australian citizen.

2. For these reasons, I place minimal weight on the evidence of Dr Abu-Arab.

3. Finally, I have regard to the evidence of Mr O’Neill. In particular, I note Mr O’Neill’s observation that Ms Slafa’s presentation was ‘significantly unusual’ and inconsistent with a person who has mental health conditions. He opined at the Tribunal hearing that Ms Slafa demonstrated evidence of ‘feigning spectrum behaviour’ and concluded there was insufficient evidence to support Ms Slafa has a permanent or enduring mental incapacity. Mr O’Neill also gave oral evidence that severe psychiatric conditions do not preclude a person’s ‘capacity to learn’ although there may be ‘compromised learning’. I find Mr O’Neill’s evidence to be comprehensive, credible and balanced; it was also consistent with Ms Slafa’s presentation of her oral evidence to the Tribunal. For these reasons, I prefer the evidence of Mr O’Neill.

   CONCLUSION

4. Weighing all the evidence, I am not satisfied Ms Slafa has a permanent or enduring physical or mental incapacity in accordance with the requirements in paragraph 21(3)(d) of the Citizenship Act.

   DECISION

5. The decision under review is affirmed.

I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated: 27 March 2020

Date of hearing:	27 February 2020
Solicitors for the Applicant:	Mr Hassan Nassir Alsudani, Alsudani Migration
Solicitors for the Respondent:	Mr Nicholas McArdle, Sparke Helmore Lawyers