Essa and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 973

Essa and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 973 (15 November 2016)

Division	GENERAL DIVISION
File Number	2016/2121
Re	Manar Essa
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Professor M J McGrowdie, Senior Member
Date	15 November 2016
Date of written reasons	30 November 2016
Place	Sydney

1. The decision of the Minister for Immigration and Border Protection made 10 March 2016 to refuse Mrs Essa’s application for Australian citizenship is set aside.

2. The matter is remitted to the Minister with the direction that as at 15 November 2016, Mrs Essa was of good character in accordance with paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

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

Professor M J McGrowdie, Senior Member

CATCHWORDS

CITIZENSHIP – good character – whether Applicant satisfies the legislative requirement to be shown to be of good character – previous convictions – assault police officer in execution of duty without actual bodily harm – resist or hinder police officer in execution of duty – mitigating factors – decision set aside and substituted

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21

Crimes (Sentencing) Act 2005 (Cth) s 10

CASES

Hassan v Minister for Immigration and Border Protection [2015] AATA 961

SECONDARY MATERIALS

Australian Citizenship Instructions (Cth) issued 1 January 2014

WRITTEN REASONS FOR ORAL DECISION

Professor M J McGrowdie, Senior Member

30 November 2016

1. At the conclusion of the hearing of the above matter heard on 11 November 2016 and 15 November 2016, the terms of the decision intended to be made and the reasons therefore were given orally. The Tribunal served both parties with a copy of the order outlining the decision that was made shortly after.

2. At the hearing on 15 November 2016 the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act1975, requested the Tribunal provide written reasons for its decision.

3. The oral reasons for decision have been transcribed by DTI Global, the Tribunal’s audio and transcription provider. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

4. The transcript of the oral reasons is annexed below and furnished to the parties as the Tribunal’s written reasons.

I certify that the preceding 4 (four) paragraphs are a true copy of the reasons for the decision herein of Professor M J McGrowdie, Senior Member.

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

Associate

Dated 30 November 2016

Dates of hearing	11 and 15 November 2016
Date final submissions received	11 November 2016
Applicant	In person
Solicitors for the Respondent	Ms K Gawidziel; Australian Government Solicitor

EXTRACT OF TRANSCRIPT OF PROCEEDINGS  [10:02AM]

The applicant, Manar Essa, born in 1983, applied for Australian citizenship on 12 October 2015. She lives in a house in a suburb of Sydney. Having arrived in Australia from Jordan in September 2002, she remains in Australia on a permanent visa.

The applicant was married in Jordan in March 2002 to her husband who is now an Australian citizen. They have three children all born in Australia. Her application for citizenship was refused on 10 March 2016 upon the basis that she had not satisfied the requirement under the Australian Citizenship Act 2007 (Cth) that she was a person of good character. The reason for this was that she was charged with offences including assault police officer in respect of events which occurred on 16 June 2013.

On 16 June 2013, as a result of a report to police suggesting domestic violence occurring at the residence of the applicant and her husband, police attended the house of the applicant and her husband.

Upon arrival, police reported that they heard screaming from a female, later identified as the applicant, and children crying. The applicant's husband let the police in and the police attempted to interview the applicant. She appeared quite emotional and upset, and it also appears that the applicant's husband was being uncooperative with police. At one point, the husband of the applicant was in the course of being arrested for resisting police and something of a struggle ensued. In the process of this, it was asserted by police that the applicant used her arms to hit the two police officers who were in attendance.

Further police backup was called for and two further police officers attended. The husband of the applicant was taken into custody and away from the premises, and as shown in some photographs which are on the Tribunal's file, the applicant's husband following his arrest showed quite some signs of having suffered some personal injury, including a black eye.

There was no apparent injuries to the applicant and she explains that what had occurred on that occasion was something which she would describe as a domestic argument and not something in the nature of an occasion where she was in fear of her husband. She certainly did not indicate that to police. In the course of things which occurred at the house on 16 June 2013, police sprayed capsicum spray which affected all occupants, including the applicant and her three children.

This is the only recorded incident with police involving the applicant since she has been in Australia. There is a certificate of there being no police incidents in Jordan. 

The matter involving the charges in relation to these incidents went to court at Fairfield Local Court in March of 2014. The applicant upon taking legal advice pleaded guilty to the charges and no conviction was recorded, the applicant being put on a bond to be of good behaviour of nine months ending in December 2014.

The applicant clearly has made Australia her home, as has her husband, and has indicated her three children have been born here. She spends her time looking after her family and is in a close personal relationship with her husband that continues. Her husband attended the hearing of her application to the Tribunal to support her.

At the hearing, she expressed regret for what had occurred and, in her words, described how she is ashamed of herself and that she had not been as controlled on that occasion as she should have been. I'm sure that on that occasion there was considerable emotion being shown and the police having arrived would appear to have been somewhat a surprise and confronting for the applicant, particularly when the situation escalated and her husband was arrested.

This, of course, was all in the presence of her three children who were at the same time considerably distressed by what was happening. The applicant gave evidence that she wished to become employed in the childcare industry and, as I understand it, was undertaking some course in this regard. However, it is her belief that as a result of the charges she is no longer able to work as a childcare worker and is looking to pursue some other avenue of study to develop a career as the children grow older.

The repercussions of the events of 16 June 2013 for the applicant have been considerable. It led to the charges being brought against her. It involved the arrest of her husband.  It may have involved her not being able to pursue a career in childcare and has resulted in the refusal of her application for Australian citizenship. 

When the matter was dealt with by the Fairfield Local Court, there were a couple of references, which are included in the Tribunal's file, which were proffered to the court.  The offences could certainly be regarded as serious ones but were treated leniently by the local court and dealt with under section 10 of the Crimes (Sentencing) Act 2005 (Cth) given the particular circumstances involved.

On the face of the charge or charges, there is an element of considerable seriousness.  However, when one analyses the record and how it was dealt with by the Local Court, it does temper to a degree the import of the offences.

The primary provision under the Australian Citizenship Act 2007 which establishes the requirements for eligibility for the grant of citizenship is section 21. One of those requirements, as I have indicated, is that the Minister be satisfied that the person is of good character. Associated with that legislation is what is called the Australian Citizenship Instructions which have been adopted by the Minister to guide those making decisions under the Act.  Chapter 10 provides:

Guidance on the administration of the good character provisions under the Act and to define for administrative purposes the meaning of "good character".

Although not binding on the Tribunal, it does provide a policy guide of what is to be regarded as good character. In paragraph 10.1.2 of the Instructions, it is stated in part that good character refers to the enduring moral qualities of a person and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and other commitments made through the pledge should they be approved for citizenship.

These considerations have been considered by the Tribunal in such cases as the case of Hassan and Minister for Immigration and Border Protection [2015] AATA 961, a decision of Deputy President Constance on 14 December 2015.

There is another issue that arose in the course of the proceedings and which is documented in the refusal decision, that the applicant when she completed her application for citizenship answered ‘no’ to a question which asked ‘Have you ever been convicted of or found guilty of any offences?’.

That question is wide enough to capture the offences for which the applicant was charged.  The applicant said she answered that question in the negative upon the basis that she did not seek to conceal anything but rather that it was her understanding that the offences for which she had been charged were effectively dismissed. 

She had solicitors - or a solicitor acting for her at the time that those offences came before the Local Court, and in a letter dated 1 August 2016 from Paramonte Legal, it is indicated that:

I further advised her that this meant she had no criminal conviction recorded on her criminal record.

It is understandable given the circumstances and what has been said by the applicant why it was that she did answer ‘no’ to that question, although strictly speaking the answer was one which should have been yes. I am satisfied nonetheless that the applicant did not intentionally seek to make a false statement but answered in accordance with what her belief was.

She did indicate in her evidence that whatever court records were available would be available in the assessment of her application in any event. It is difficult to know exactly what was in the mind of the applicant at the time, but as I say, I am satisfied that there was no deliberate attempt to mislead.

If there had been, of course, then this would be relevant to a consideration of whether the applicant as a result would be regarded as a person who did not meet the test of good character.

The granting of citizenship is not a right and there is always a discretion to refuse an application. A relevant matter to consider is the length of time that the applicant has been in Australia, and that of course has been for a considerable period of time. 

Another matter is her connection with Australia and the community, and in this regard, I note that she has made Australia her home. She is married to a man who is now an Australian citizen and she has three children to look after.

Further, I consider whether or not the applicant has had any other charges at any other time, and she has not. There has been now some period of time since these offences which occurred in June 2013, and since that time there has been nothing further which would adversely reflect on the applicant's character. What occurred on 16 June 2013 is something that the applicant deeply regrets.

It is not something which has been indicative of any character flaw or something which reflects significantly on the applicant being regarded as a person of good character.

For all these reasons, and given the applicant's current circumstances, I consider that it is appropriate that the applicant be granted citizenship, and accordingly I set aside the decision made by the delegate and uphold the application which has been made. They are the reasons for my determination.

END OF TRANSCRIPT   [10:37AM]