Australian Immigration Daily News

Just as it is true that every applicant for an Australian visa is subject to the “character test” under section 501 of the Migration Act, it is equally true that applicants for Australian citizenship must pass a second “character test” under the Australian Citizenship Act 2007.  The character tests under these laws are not the same: while section 501 of the Migration Act describes with a high level of specificity the types of issues that will disqualify a visa applicant (for example, having a “substantial” criminal record), the Citizenship Act provides only in general terms that an applicant must be a person of “good character” at the time that a decision is made on the application.

Unlike the Migration Act, the Citizenship Act does not include further guidance concerning the meaning of the term “good character”.  The meaning of “good character” has, however, been discussed in decisions of the Federal Court of Australia, including the case of Irving v Minister of State for Immigration, Local Government and Ethnic Affairs  (1996) FCA 663; (1996) 68 FCR 422. In the Irving case, the Court held that “good character” is to be understood in the “ordinary sense” of these words, and is to be interpreted to mean “the enduring moral qualities of a person”.

The “character test” of the Citizenship Act  proved fatal to an application for citizenship in a case that was decided by the Administrative Appeals Tribunal  earlier this month, FBMR and Minister for Immigration and Border Protection, (2015) AATA 116 (2 March 2015).

The case involved an application by a 37 year old New Zealand citizen, who had been living and working in Australia under a “Special Category” (subclass 444) visa.  The application sought the grant of Australian citizenship “by descent” (thus while it is not discussed in the AAT’s judgment it is apparent that the applicant was born overseas to an Australian parent or parents).

The applicant faced two primary obstacles to the approval of his citizenship application. First of all, the applicant had compiled what the AAT characterized as an “extensive criminal record” in New Zealand prior to his initial arrival in Australia (in 2008) on the Special Category visa.  Most of these offences were committed before the applicant reached the age of 26. The nature of these early offences is not identified in the AAT’s judgment. The only offence that is specifically described is one that occurred when the applicant was over 30 years old, which involved a third offence for driving while disqualified and under the influence of alcohol.  The applicant was sentenced to 6 months imprisonment for this offence.

Ironically enough, it was not the applicant’s criminal record in New Zealand that ultimately proved problematic in the view of the AAT.  Rather, it was the fact that the applicant had repeatedly made false declarations on his “incoming passenger card” when travelling to Australia that he did not have a criminal history. The applicant answered this question on the incoming passenger card falsely on at least 4 separate occasions.

Worst for the applicant was that he had made the most recent of these false declarations after having been issued correspondence by the Department’s “National Character Consideration Centre” reminding him of the importance of truthfully responding to the questions about his criminal history on the incoming passenger card.

The applicant’s failure to truthfully acknowledge his past criminal record on the incoming passenger cards caused the AAT to conclude that he was not a person of “good character”.  In arriving at this conclusion, the AAT had regard to the Australian Citizenship Instructions.  These Instructions contain a list of qualities that are required to demonstrate “good character”, including that the person is truthful and does not practise deception or fraud in their dealings with the Australian government and does not provide false information to the government.

The truly unfortunate aspect of the case for this applicant is that it appears likely that his application for citizenship would have been approved had he not repeatedly filled out the incoming passenger cards in an untruthful manner.  In discussing the applicant’s background, the AAT’s decision refers to the fact that most of the applicant’s criminal history had occurred when he was a young man under the age of 19, that he had abided by the law throughout the period of his residence in Australia, and that he was viewed as a model employee by his employer. It appears that this evidence may have prompted the AAT to conclude that the applicant was a person of good character for the purposes of his citizenship application notwithstanding the evidence that he had an extensive criminal record in New Zealand when he was a young man.

The AAT’s judgment also refers to the fact that the applicant is a supporter of his local rugby club! While that may be evidence of being a “good Australian”, it is unclear to the writer (who migrated to Australia from the United States and remains mystified by the arcane rules of rugby!) exactly how supporting a rugby club could be evidence of a person’s “character”, one way or the other!!  What is clear is the applicant’s support of the rugby club was not sufficient to overcome the adverse evidence that he had repeatedly filled out his incoming passenger card untruthfully, particularly on the most recent occasion in the face of a specific warning from the Department not to do so.

The result in this case reinforces the principle that, above all, it is essential for an applicant for citizenship or for a visa to be completely truthful in all communications and dealings with the Australian government. Making false statements about one’s personal history may prove to be more harmful to an applicant’s prospects than the underlying conduct the applicant may be attempting to conceal.

In this regard, we invite readers of the Migration Alliance blog to “stay tuned” for our upcoming discussion of another citizenship case before the AAT. In that matter (Hasib and Minister for Immigration and Border Protection (2015) AATA 82 (13 February 2013)) the applicant was successful in obtaining Australian citizenship notwithstanding the fact that he had a criminal record in Australia involving 10 offences for credit card fraud!

This article was prepared by Michael Arch, Concordia Pacific Migration Lawyers, MARN 1386469, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.  Tel: (02) 8068 8837, Web: concordialaw.com.au