The contents of this article are correct as at 24 February 2015.
The most common pathway for an Australian permanent resident to become an Australian citizen is by making an application for citizenship by conferral. One of the key requirements for a person to become an Australian citizen by conferral is that they are a person of good character (section 21(2)(h), Citizenship Act 2007 (“the Act”)).
According to Chapter 10 of the Australian Citizenship Instructions (“the Instructions”), an assessment of a person’s character is considered important to determine whether a person is “likely to uphold and obey the laws of Australia and the other commitments made through the pledge, should they be approved for citizenship.” This reveals a different objective to the character provisions of the Migration Act 1958 and applicants should be aware that they could pass the character test in the Migration Act and still be refused citizenship on character grounds.
This article has been prepared to assist potential citizenship applicants in understanding the character requirements for citizenship and to shed some light on the way these requirements are currently applied by decision makers.
What is good character?
The concept “good character” is not defined in the Act, meaning in accordance with the rules of statutory interpretation, it must be given its ordinary meaning. This has prompted the development of detailed guidelines for decision makers to follow when assessing a person’s character. It is useful for applicants to be familiar with these guidelines if they believe that they may fall foul of the character requirement.
In the Instructions, good character is described as referring to the “enduring moral qualities of a person”. This is said to encompass:
- Characteristics which have been demonstrated over a long period of time
- Distinguishing right from wrong
- Behaving in an ethical manner, conforming to the rules and values of Australian society
In making an assessment of an applicant’s character the Instructions direct decision makers to consider the following factors:
- Offences - whether an applicant has committed any offences, the nature of those offences and whether they were disclosed in their citizenship application;
- Associations - whether the applicant is associated with:
- Persons or organisations alleged to have committed war crimes, crimes against humanity and/or genocide; or
- Criminals or criminal organisations; or
- Afamily member who has committed an offence;
- General conduct - whether the applicant is a risk to national security; and
- whether the applicant has behaved in such a way as to show they are not a person of good character even though there has been no conviction against them. Examples given in the Instructions include where a person has defrauded a government agency, placed children in danger, or engaged in political extremism.
The Instructions also direct decision makers to consider any mitigating factors which can be taken into account to enable a person to found to be of good character. Factors in the Instructions include:
- The length of time which has passed between any offence committed and the application for citizenship;
- The applicant’s age at the time of any offence, and any extenuating circumstances;
- The applicant’s behaviour since completing any prison term or since the cessation of any obligations to the court;
- The applicant’s remorse;
- The applicant’s lifestyle, including being in long term employment, having a stable family life and/or any community involvement; and
- Evidence from referees.
In the Instructions, decision makers are instructed to take a holistic approach by looking at an applicant’s behaviour over a long period of time, weigh up all relevant factors, and apply “community standards”, to decide whether a person is of good character.
The current approach
By not defining good character, the Act has given decision makers a broad discretion in making an assessment of an applicant’s character. Despite this, current decision making appears to apply the Instruction’s guidelines on character very strictly. Recent decisions show that even where a person has been convicted of a single traffic offence, an assessment can be made that a person is not of good character. Weight will be given to the length of time which has elapsed since an offence occurred, as well as the length of time which has elapsed since any ongoing obligations to the court ceased. If a person has been placed on a good behaviour bond then an applicant would need to delay applying until sufficient time has passed since the bond ceased. Recent decision making shows that where very little time has passed since an applicant committed an offence, or was relieved from any obligations to the court, then strong mitigating factors need to be presented to show that the person is of good character.
In a recent case, an applicant for citizenship had been charged for one incident in 2010 involving driving without a licence, driving an unregistered vehicle and driving an uninsured vehicle. The applicant applied for citizenship in 2014 and was refused on character grounds. While the decision maker acknowledged that these were the applicant’s only offences, the decision maker felt that the four years which had passed since the commission of the offences was insufficient to establish a pattern of behaviour which would show that the person was of good character. While the offences may not seem particularly serious and had occurred four years earlier, the applicant had failed to provide any evidence to show that they were of good character, such as character references. The decision maker also indicated that the applicant had failed to provide any information regarding extenuating circumstances, which would explain the offences. The decision maker therefore concluded that the person was not of good character.
In a similar case, an applicant was charged in 2013 for a single incident of driving on a Learner Driver Licence while unaccompanied, and was refused citizenship on character grounds. The applicant addressed his criminal history by providing a statutory declaration with his application, stating his offence was a rare incident and explaining that he drove unaccompanied due to an emergency. He also provided a series of character references from family members, friends, employers and his education provider.
The decision maker was critical of the applicant’s statutory declaration for failing to provide any information about the emergency which prompted the applicant to drive unaccompanied. He was also critical of the character references provided, stating that some of them did not meet the standard required in the Instructions. The decision maker gave less weight to references which were not statutory declarations and dismissed the references from Australian family members, stating they were impartial and therefore not reliable. The decision maker also discounted the references which did not refer to the applicant’s criminal conviction, or attest to a change in character since the offence was committed.
It is not clear how decisive the quality of the references were in this case as the decision maker ultimately decided the applicant was not of good character because the applicant was still under an obligation to the court when he applied for citizenship. Until sufficient time has passed after the obligation ceased the Instructions suggest a person cannot satisfy the requirement to be of good character. However the decision maker’s criticism of the character references does suggest that even if further time had elapsed, and the applicant was no longer under an obligation to the court, he may not have been assessed as a person of good character. It appears that in cases where a person has committed an offence, even a minor offence such as a traffic infringement, the onus is on the applicant to provide sufficient evidence of a certain standard to satisfy the decision maker that they are person of good character.
The importance of providing strong evidence of good character is shown by a third case, where an applicant was charged in 2011 with common assault on his wife and obtained citizenship in 2015. While he was refused at first instance, the Administrative Appeals Tribunal (AAT) found he was a person of good character. The AAT agreed with the Department of Immigration and Border Protection (“Immigration”) that the applicant had committed a serious offence, however they found that there were mitigating circumstances which indicated the applicant was a person of good character, even though the applicant had only been convicted three years earlier. Mitigating circumstances which the AAT took into account included:
- The applicant’s disclosure of the offence on his citizenship application form;
- The applicant’s genuine remorse and his acknowledgement that his behaviour towards his wife was wrong;
- Character witnesses, including his wife, and his wife’s sister, who provided information about the circumstances surrounding the assault, and detailed the applicant’s commitment to his family;
- The stable family life which the applicant had established with his wife and their child, and the positive influence of the applicant’s wife on him, which would safeguard against the applicant committing any further offences.
Immigration’s current approach to character issues within the citizenship framework suggest that even where a minor offence has been committed applicant’s will need to provide sufficient evidence of good character to satisfy the character requirement for citizenship. Recent decisions also suggest that sufficient time needs to have elapsed after the commission of an offence, for an applicant to be able to show that they have rehabilitated and are of good character for the purposes of their citizenship application. How long is sufficient time, will be dependent on the particular facts of each case and the strength of the evidence provided which shows the applicant is of good character. The more recent the incidents occurred, which show the person is of bad character, the stronger the evidence of good character will need to be.
What evidence of good character can be provided?
Applicants with any convictions, associations or behaviour, who are concerned that they may not satisfy the character requirement, should be prepared to address this in their citizenship application. Applicants are required to disclose any criminal history on their application form and an Australian police check is conducted for all applicants. Overseas penal clearances are also required for any applicant who spent more than 90 days in any one country since becoming an Australian permanent resident.
While the application form provides some room for an applicant to disclose any character information, an applicant may wish to provide a statutory declaration giving further information about the offence/behaviour and include comments about the applicant’s remorse, reform and rehabilitation. Being proactive about disclosing and explaining an offence or behaviour appears to be given weight by decision makers and is considered a display of remorse and an indication of the applicant’s rehabilitation.
Applicants should also provide character references demonstrating their good character. Decision makers expect referees to indicate how long they have known the applicant and the nature of their relationship. They also expect referees to have knowledge of the applicant’s criminal history. The Instructions indicate that more weight will be given to references in statutory declaration form, which come from members of the community who have observed the applicant at work or in other contexts, and who are willing to provide contact details. The Instructions encourage decision makers to contact referees to test their knowledge of the applicant.
Decision makers are instructed to give less weight to references from family members, who are taken to be inherently biased. However character references from family members may be useful in some cases. The success of the case at the AAT, discussed above, hinged on the applicant’s wife’s and sister-in-law’s evidence. The circumstances of each applicant must therefore be considered closely when determining the types of evidence which will most assist an applicant to show that they are of good character.
If you are planning to apply for citizenship but have a criminal history, including traffic infringements, you should be aware that you may be refused citizenship on character grounds. If you would like assistance in making a citizenship application and/or need advice on the character requirements for citizenship please click this link to contact Visa Lawyers Australia.