• Character Requirements for Australian Citizenship

Character Requirements for Australian Citizenship

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.

Summary

‘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.

When DHA need to consider good character

The following table provides a summary of the relevant character provisions by type of application.

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

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.

What is good character

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:

  • characteristics which have been demonstrated over a very long period of time
  • distinguishing right from wrong
  • behaving in an ethical manner, conforming to the rules and values of Australian society.

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.

Community standards

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.

Australian values statement

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.

An applicant who is of good character

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:

  • respect and abide by the law in Australia and other countries
  • be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
  • be truthful and not practice deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
    • providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
    • involvement in bogus marriage
    • concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
    • involvement in Centrelink or Australian Tax Office fraud
    • giving false names and/or addresses to police
  • not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
  • not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
  • not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
  • not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
  • not be the subject of any extradition order or other international arrest warrant
  • not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
  • not be the subject of any verifiable information causing character doubts.

Relationship between Citizenship and Migration legislation

Character assessments under both Acts

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.

Migration/citizenship case studies

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.

Framework for making ‘good character’ decisions

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.

Behaviour – why the applicant might not be of good character
Offences
  • Has the applicant committed any offences and if so, did they admit that in their citizenship application? Passenger card declarations could also be checked for an acknowledgement of criminal convictions.
  • If the applicant has a criminal history, further police checks and, if relevant, an overseas penal check may be necessary.
  • If the applicant has committed an offence, was it serious or minor. Serious offences include, but are not limited to:
    • crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death)
    • war crimes, crimes against humanity and/or genocide
    • crimes against children
    • drug trafficking (including importation and supply)
    • people smuggling
    • fraud (including identity fraud)
    • harassment or stalking
    • terrorist activity
    • extortion
    • illegal pornography, including child pornography
    • breaches of immigration law, including those that resulted in removal or deportation from Australia or another country
    • other offences incurring prison sentences of 12 months or more.
  • Minor offences include:
    • shoplifting
    • traffic offences which have been included in a criminal record
    • offences which do not lead to a conviction or a sentence.
  • Were there victims of the offence? In particular, were the victims vulnerable people like children, the elderly or the disabled, or others who trusted the applicant?
    • For more complex cases, consider any Victim Impact Statements that are available. In some cases, it may be relevant to look at literature, such as through an internet search, about the long-term impact of certain offences, e.g. sexual assault.
  • Was the offence pre-meditated?
  • Consider the length of the sentence, if one has been imposed. Any sentence is relevant to a consideration of good character but weight should be given to a serious prison sentence, which is defined in the Act as being a period of at least 12 months.
  • Are there any ongoing obligations in relation to the sentence received, such as a good behaviour bond following conviction?
  • Look at decisions made by courts about the applicant, particularly sentencing remarks, as they give an insight into the character of the applicant. Sentencing information can be obtained by application to the relevant court. Parole reports may also give useful information (sometimes parole reports are on the s501 visa cancellation file).
  • How many offences have been committed? Was it a one-off or is there a pattern of criminal behaviour?
    • a pattern of behaviour, even of repeated minor offences, shows a disregard for the law and indicates that the applicant may not “uphold and obey” the law if citizenship is conferred on them.
  • Was the offence committed overseas? If so, is there an equivalent Australian offence? DHA need to be aware that some offences do not have equivalents in Australia. For example, a person charged with political offences in one country may not be considered to have committed a crime in Australia.
  • Has the applicant previously been an Australian citizen and had that citizenship revoked? If so, look at the circumstances of the revocation. The person may not be of good character even if they are eligible to reapply for citizenship.
Associations
  • Has the applicant associated with persons or organisations alleged to have committed, war crimes, crimes against humanity and/or genocide?
    • see section 9.6.4 War crimes, crimes against humanity and/or genocide in relation to cases where such crimes are suspected.
  • Is the applicant associated with criminals or criminal organisations, or other groups that do not uphold and obey the laws of Australia or abide by the Australian values and standards? The nature of the association, the degree and frequency of association the person had or has with the individual, group or organisation, and the duration of the association should be taken into account.
  • Is the applicant a family member of a person who has committed an offence? If DHA is aware of criminal conduct of a family member, such as a spouse, subject to privacy considerations, this may be disclosed to the citizenship applicant and DHA can ask the applicant to comment on the conduct. If there is evidence linking the applicant’s conduct to the criminal conduct of their family member, this information will be relevant to the assessment of the applicant’s good character.
  • applications of family members should be processed together and should not be decided until full details of any criminal conduct is known and any association of family members can be assessed. This is particularly important if there is an Interpol Red Notice in relation to a family member.
  • if a family member has committed identity fraud, the other family members should be considered in light of this information. It could reflect upon their character if the they have been involved in the identity fraud as well. An example is where siblings have posed as a married couple, both have been involved in the fraud therefore both citizenship applicants should be considered by the same officer at the same time.
General conduct
  • Is the applicant a risk to national security?
  • Note: Section 24(4) prohibits citizenship being approved if there is an adverse or qualified security assessment in force in relation to the applicant.
  • How has the applicant interacted with the Australian Government or State/Territory governments? Have they been honest or have they committed fraud, including identity fraud, even if there has not been a criminal conviction? Look at a range of interactions and other information that may be contained in departmental records, such as the visa or citizenship applications, any information on file concerning the Australian Tax Office, Centrelink and Medicare etc.
  • Has the applicant engaged in conduct that potentially places children in danger such as unwelcome and/or inappropriate approaches, including by electronic media?
  • Has the applicant been dishonourably or prematurely discharged from the armed forces of another country in circumstances, or due to conduct, that in Australia would be regarded as serious and which impact on the applicant’s character?
  • Has the applicant engaged in conduct that would reasonably cause another individual to be severely apprehensive, fearful, alarmed or distressed regarding the applicant’s behaviour towards that individual or their property or that of any other individual?
  • Has the applicant engaged in political extremism, vilified a segment of the community, incited discord, or endangered society through involvement in illegally disruptive and/or violent activities?
  • How has the applicant behaved in their interactions with government officials? If DHA has evidence that the client is not of good character, they may also note specific examples of threatening or offensive behaviour they have been observed in order to add weight to the assessment.

Mitigating Factors – could the applicant be of good character anyway

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.

  • What is the length of time between the date of offence (if known) and application for Australian citizenship, or between conviction and application? Note: There can be a delay between the time of the offence and conviction (if any) for a variety of reasons, such as delays in being charged and/or protracted court cases. Each case is to be assessed on its own merits and issues such as the seriousness of the offence, the nature of the offence, whether another person was harmed and the rehabilitation process needs to be assessed. In the case of a serious offence, a significant amount of time may have to have passed before DHA is satisfied that the person is now of good character.
  • Has the applicant accepted responsibility and shown remorse for their conduct?
  • How has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?
  • it is important to see how the client behaves when they are free from the obligations of such a sentence or bond. A reasonable amount of time will need to have passed in order for the person to have established a pattern of good behaviour and thus justify a conclusion that the person is now of good character and is upholding Australian laws.
  • Has the applicant rehabilitated themselves? Have they made a conscious effort to obey and uphold Australian laws? For example, have they undertaken drug and/or alcohol counselling, an anger management course, a program or counselling for sex offenders or any other program which addresses risk factors relating to their offending? Have they moved away from bad influences, for example by disassociating themselves from a peer group?
  • What was the applicant’s age at the time the offence was committed? If the applicant committed the offence at a young age, the commission of the offence may be given less weight depending on the nature of the crime and any subsequent offences. It may be possible that the person has matured and gained greater respect for upholding the law than as a youth, and as such, any criminal offences from that period of their life are less indicative of their current character.
  • Were there any extenuating circumstances relating to the offence? For example, an offence committed under duress or under periods of psychological disturbance (including involuntary effects of medication or temporary psychological conditions but not including under the influence of recreational drugs), may be given less weight. Any claims of mental illness should be supported by a Psychiatrist’s report.
  • Is there evidence of length of employment, stable family life and/or community involvement? These may be indicators of good character. Applicants may wish to provide references from independent people, like employers, attesting to the applicant’s character and whether they support the application for citizenship.

Natural justice case studies

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.

Factors not to take into account
Travel plans
  • Sometimes applicants will argue that they need to become Australian citizens urgently because they need to travel. Generally, this is not a relevant factor and a decision must be made on the merits of the application itself.
  • It is the responsibility of the applicant to maintain the currency of any travel documents issued by their other country of citizenship, where possible. If there are particular reasons why this could not be done, the applicant could contact the Department of Foreign Affairs and Trade concerning emergency documents which may be available, depending on the circumstances of the case.

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