It is a requirement that applicants aged 18 and over who seek to become Australian citizens must be of ‘good character’. Good character is not defined in the Act. The purpose of this article is to provide guidance on the definition of the ‘good character’ provisions under the Act. This article also provides a framework for assessing an applicant under the “good character” provisions. DHA will look at the merits of each case and to turn their minds to the issues of character until they are “satisfied”, on a reasoned basis, that an applicant is, or is not, of good character. ‘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 the other commitments made through the pledge should they be approved for citizenship. Character considerations under the Migration and Citizenship Acts are not the same and it is possible that an applicant could have passed the migration character test but still not be of good character under the Citizenship Act. Citizenship character decision making framework- DHA will: a. check all relevant sources of information b. characterise the nature of any offence (serious/minor; victims; pattern of behaviour/one off; length of sentence; sentencing remarks etc), c. consider any relevant associations, d. consider general conduct, e. consider mitigating circumstances (length of time since offence, age at time of offence, behaviour since completing prison sentence or obligations to court, remorse, referee reports, etc), f. send the applicant a Natural Justice letter and consider the applicant’s response, g. weigh up relevant factors, applying community standards, to decide whether or not the applicant is of good character. Look holistically at applicant’s behaviour over an enduring period of time , h. in all cases, DHA will articulate the reason that they consider an applicant is of “good character”. Some cases may be more complex concerning character, especially if there are concerns about war crimes, crimes against humanity and/or genocide, an Interpol Red Notice, a Red MAL alert or if the applicant has been unable to obtain an overseas penal clearance and a waiver is not appropriate. Character considerations can still be relevant after an approval decision if it comes to the Department’s attention that a person is under criminal investigation but has not been convicted, or is being investigated for the cancellation of a visa. The following table provides a summary of the relevant character provisions by type of application. Section 24(6) sets out circumstances related to the commission of offences in which the Minister must not approve an applicant for citizenship by conferral. If an applicant’s circumstances are specified in s24(6), the applicant must not be approved. If s24(6) applies, it is departmental policy that DHA must also assess the applicant against the relevant eligibility criteria set out in the Act, including residence and character requirements. This further assessment is required because, if the applicant seeks review at the AAT, the circumstances that led to the prohibition on approval under s24(6) may no longer exist at the time of review. As the AAT may set aside for primary decision and remit the matter to the department to reconsider, it is considered an inefficient use of resources for the department to go through the decision making process twice on the same matter, and for the AAT to deal with another review if the applicant is refused on another ground and seeks review for the second decision. However, if the s24(6)(a) (pending proceedings) prohibition applies, DHA will refuse to approve the application on that basis. An assessment of “good character” cannot be made because the outcome of the proceedings would be a relevant consideration in such an assessment. An exception to this would be if the applicant already has a criminal record which might cause the delegate to refuse the applicant both under character and under the prohibition. Unlike s501 of the Migration Act, the term “good character” is not defined in the Act. Therefore, the Federal Court (FC) and the AAT have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the following definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432): Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character. In this context, “moral” does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts: The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics. This broad definition means that DHA can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes. In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen discussed the role of the character requirement in a citizenship application (at [8]): The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few year’s time when he can demonstrate a longer period of positive contribution to the Australian community. In Zheng v Minister for Immigration and Citizenship ((2011) AATA 304), Forgie DP found the Preamble to the Act could provide assistance in identifying what Australian society considers to be right and proper behaviour for the purposes of assessing good character ((2011) AATA 304 at [119]). The Preamble to the Act sets out the meaning of Australian citizenship: Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity. The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations: (a) by pledging loyalty to Australia and its people; and (b) by sharing their democratic beliefs; and (c) by respecting their rights and liberties; and (d) by upholding and obeying the laws of Australia. After considering the text of the Preamble, Forgie DP stated ((2011) AATA 304 at [120]): In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do. The role of the Department is to assess, to the best of their ability, whether the applicant is of good character at the point of decision. Such an applicant is likely to uphold the Pledge, should they be approved for citizenship. Another identification of community standards can be found in the Australian values statement. The Statement requires applicants to confirm that they will respect the Australian way of life and obey the laws of Australia before being granted a visa. The values statement for holders of provisional or permanent visas also acknowledges that, if an applicant goes on to become an Australian citizen, they will enjoy reciprocal rights and responsibilities and that these responsibilities include obeying Australian laws. While the values statement will not apply to all citizenship applicants (applicants for citizenship by descent, adoption, resumption and those who acquired permanent residence before 17 October 2007 will not have signed the statement), it is a clear statement of community expectations that apply to all, including those who have migrated to Australia. Drawing from the definition outlined above, an applicant of good character would have the following characteristics. This list is not exhaustive and should be considered in conjunction with section 9.5 Framework for making ‘good character’ decisions. An applicant of good character would: If a citizenship applicant’s visa has been considered for refusal or cancellation on character grounds, DHA will request the applicant’s visa and character consideration files and consider whether the information contained in the files is relevant to the assessment under the good character requirement. DHA will take into consideration under the Migration Act and it is open to them to find that the applicant is not of good character in the citizenship context, despite not having had the visa refused or cancelled under the Migration Act. DHA will also look at whether there is migration history for applicants for resumption of citizenship. Such people may have previously had citizenship conferred upon them and then renounced it for some reason before now wishing to resume. Applicants for citizenship by descent might also have a migration history if they have had temporary visas to come to Australia in the past. Applicant A committed fraud on her application to migrate to Australia, falsifying her IELTS exam results and her professional qualifications. Her visa was considered for cancellation under s109 of the Migration Act, but was not cancelled because her visa could have been granted even if she did not have the IELTS results or the particular qualifications she claimed. However, she was not of good character for the purposes of the Citizenship Act because she committed fraud and deceived the Australian government. Applicant B also committed fraud on his application for a permanent visa. The fraud was picked up and his visa was refused. He subsequently applied for a different visa and did not rely on the previously submitted fraudulent information. This visa was granted. When he applied for citizenship, DHA was able to look back at his behaviour with his first visa application and to decide, after weighing other factors, that he was not of good character as he had deliberately attempted to deceive the Australian government, despite being granted a subsequent visa. Considerations for DHA to take into account when assessing good character. This list is not exhaustive. The factors may have different weights, depending on the circumstances of the case. This framework is consistent with the values and standards outlined in the Preamble to the Act and the pledge. The citizenship character assessment is informed by the applicant’s character prior to applying for a visa and during their time in Australia. It is an assessment of all the available information to date, including any information provided in the visa application process and while the applicant has been a visa holder in Australia. DHA will also seek additional information such as requesting further overseas penal clearances or asking to see original documentation which may or may not have been part of the visa process. Once the behaviour of the applicant has been assessed, DHA will turn their minds to whether there are any mitigating factors to be taken into account. Applicant C was convicted, at 18 years of age, of a one-off offence of dealing in stolen property and sentenced to a six-month term of imprisonment, suspended for 12 months. In his response to the natural justice letter, he stated that he had come alone to Australia at the age of 15, living with a relative until he turned 18. At that point, he moved to the city and was unable to find work. He was not able to pay for medical bills and responded to an advertisement in ethnic media offering work at $800 a week. As a result of this work, he was convicted of his criminal offence. He stated that he had been young, without guidance, needed work and was not able to recognise who could be trusted. He described his shame, regret and sorrow for his actions and stated that he would not let anything similar happen again. The decision maker was satisfied with this response and noted that it was confirmed by independent character references. Applicant D was convicted of domestic violence and was the subject of an apprehended violence order. When he applied for citizenship, he admitted the offence but in his response to the natural justice letter, he argued that it had been the victim’s fault. The decision maker was not satisfied that the applicant had accepted responsibility for the crime nor demonstrated any remorse. Related:Summary
When DHA need to consider good character
Application type
Descent
Adoption under Hague Convention on Intercountry Adoption or bilateral arrangement
Conferral
Resumption
Good character requirement
s16(2), s16(3)
s19C(2)
s21(2), s21(3), s21(4), s21(6), s21(7)
s29(2), s29(3)
Decision making provision
s17(1A)
s19D(2)
s24(1A)
s30(1A)
Refusal under s24(6) (offences) and the consideration of good character
What is good character
Community standards
Australian values statement
An applicant who is of good character
Relationship between Citizenship and Migration legislation
Character assessments under both Acts
Migration/citizenship case studies
Framework for making ‘good character’ decisions
Behaviour – why the applicant might not be of good character
Offences
Associations
General conduct
Mitigating Factors – could the applicant be of good character anyway
Natural justice case studies
Factors not to take into account
Travel plans
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