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AAT rules DIBP’s character assessment is too harsh
The AAT finds that DIBP had wrongly focussed on events of a single day in DIBP's decision to refuse an application for citizenship. The AAT held that DIBP must properly take into account the general conduct of the applicant over a period of time in order to properly determine whether the events were ‘out of character’, the chances of such repeat behaviour, and prospects of reform.
DIBP’s refusals to grant a Chinese national and Australian permanent resident, citizenship on character grounds has been overturned by the AAT in a recent decision: Zhang and Minister for Immigration and Border Protection [2014] AATA 136 (13 March 2014).
DIBP had decided that the Applicant was not of good character by reason of his conduct on a single day. The applicant had been convicted in November 2009 of two counts of common assault and one of breaching an Apprehended Violence Order (AVO). The charges arose out of an argument between the Applicants and his then wife on 22 October 2009.
It is a requirement for eligibility for Australian citizenship by conferral that a person be of good character: Australian Citizenship Act 2007 (the Citizenship Act) s 21(2)(h). However, the Citizenship Act does not define “good character”. Guidance is found in Chapter 10 of the Australian Citizenship Instructions (ACIs) which offers guidance on policy in relation to the interpretation of, and exercise of powers under, the Citizenship Act and Regulations.
The ACIs refer to the phrase “enduring moral qualities” in assessing character. The AAT held that the phrase “encompasses concepts of characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, conforming to the rules and values of Australian society. This broad definition means that “a decision maker 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”: cl 10.3.1.
“When considering a person’s enduring moral qualities, a decision maker needs to look “holistically at an applicant’s behaviour over a lasting or enduring period of time”: cl 10.5.4 of the ACIs. We accept the submission for the Minister that a period at least equivalent to a supervisory order such as parole or a good behaviour bond would be expected to elapse before a person can be considered reformed and of good character. We agree that, until a person is free of such obligation to the Court, their conduct cannot truly be tested. On the other hand, compliance with a supervisory order should not be dismissed as irrelevant. It is still the case that Mr Zhang has not re-offended for nearly four and a half years, during two of which he was not subject to any supervision. In all the circumstances, we are satisfied that he has reformed and will not re-offend.”
“We are satisfied, in all the circumstances, that Mr Zhang is of good character. We set aside the decision under review and remit it for reconsideration with a direction to that effect.”
Comments
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Thursday, 20 March 2014Absolutely - this is yet another instance about the zealous application of law and regulation by delegate of the minister interpreting the rules in such a way that it's more about 'saving' ourselves from ourselves (just in case) and the community, from people of 'dubious' character, who still remain permanent residents for all intents and purposes and continue to walk 'amongst us'.
Two questions, (or more): Isn't there an internal review of such application outcomes undertaken by Canberra (or even within the state offices - why not?) to ensure that natural justice fares prominently in the department's actions and some corrective action (should I say 're-training') taken to address these discrepancies? - who minds the 'minders'?
After such a decision is made by a minister's delegate, how does someone who is in the same position as Mr Zhang, fight the machinery if they have no means and no resources to take a case to the AAT?
I've had two clients who've been told to wait a good '10 years' before applying for Citizenship again, as a 'safe' period of time, for very similar issues - now - isn't that departmental control gone bezerk? is that a 'reasonable' period to show no 're-offending'?
Don't we want people to participate in society and become 'acculturated' into our community, exercise their democratic right to vote and be heard?
What message are we giving migrant communities, second and third generations? that they are ok because they're Australian born but their parents are not 'quite' ok to become citizens 'yet'? all of this seems conditional, to me, as there is a wide spectrum within the context of 'good character', regardless of the prescriptive ministerial direction (as the AAT has established).
Whilst the character provisions within both Acts are there to ensure that people who are a security and a criminal risks are dealt with and scrutinised (and I totally agree with that), if s501 was applied to EVERYONE in Australia who had just the one episode or a couple of lesser ones, it will become a significantly empty space with permanent residents being deported, full of people who could not obtain citizenship or have it taken away (why not?) including a few politicians... an interesting thought... just imagine, a limited pool of voters within a big brother governmental framework - interesting thought...
Immigration blog
This is a great decision and shows up the failure by DIBP to comprehend their own statutory scheme.