Australian Immigration Daily News

Character, character character!

Issues relating to character are literally ubiquitous in Australian migration and citizenship law.

In order to get any kind of visa to enter Australia in the first place, one must be able to satisfy the “character test” of section 501 of the Migration Act.  Under section 501(6), a person will “fail” the character test if she/he has a “substantial criminal record”, which is defined by section 501(7) to include having been sentenced to a term of imprisonment for 12 months or more, or to 2 or more terms of imprisonment totaling 12 months or more.

However, one does not even need to have been convicted of a criminal offence to “flunk” the character test: a person can be found by the Department not to be of good character simply based upon her or his “past and present general conduct” (in other words, conduct that has not given rise to any type of criminal proceedings at all) and also based on “past and present criminal conduct” that has resulted in cumulative sentences that do not amount to 12 months or more.

Further, as we have seen in several recent articles that I have posted on this blog, questions of character can certainly can come back to “haunt” the holder of a permanent residency visa:  even in circumstances where a person has been living in Australia since early childhood, and Is not prosecuted for an offence until decades have passed after the event, the Department may cancel the person’s visa on the grounds that she/he fails to meet the character test.  When a visa is cancelled by the Department or the Minister on character grounds, they can be taken into immigration detention and held there pending review of the visa cancellation decision (and as we have sign, a person may wind up being held in immigration detention during such a review for a longer period of time than the prison sentence for the original criminal offence. Of course, if a challenge to a visa cancellation decision is not successful, the ultimate fate of the visa holder will be deportation from Australia. 

Likewise, character is one of the fundamental issues when it comes to citizenship decisions.  Under section 21(2) (h) of the Australian Citizenship Act, a person must demonstrate that she/he is of good character at the time of the Minister’s decision on the citizenship application. The concept of “good character” is most commonly evaluated under the principles that were articulated in the case of Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) FCR 422 to mean the person’s “enduring moral qualities”.  The Irving decision recites that a person who has been convicted of a serious offence may nonetheless show that she or he has “reformed “and become a person of “good character”.  However, such a person would have had to have enjoyed the good fortune not to have had their visa cancelled by the Department of the Minister before “reforming”!!! 

So to put the issue “in a nutshell”, issues of character can get you “coming and going”! And while, at least for the time being, achieving Australian citizenship can “insulate” a person from the risk of deportation that may not always continue to be the case!! As we have seen in recent news stories, the Abbott government has actively considered proposals to strip Australian citizenship from dual nationals who have gone overseas to fight with terrorist organisations, and ideas have even been advanced to take away citizenship from people who hold only Australian citizenship, which would effectively make such persons “stateless”.  It will certainly be worth following this issue closely to see where it all goes, and what legislation on this issue, if any, is ultimately adopted. 

Focusing solely on the domestic arena for the moment: a recent decision of the Administrative Appeals Tribunal, that was handed down last Friday (14 August 2015), Jiang v Minister for Immigration and Border Protection (Citizenship) (2015) AATA 597, illustrates that an applicant for Australian citizenship does not have to be convicted of a criminal offence, let alone imprisoned, in order to fail the character test under the Australian Citizenship Act.

In this case, the applicant, Jiang, pleaded guilty to three separate offences in the Melbourne Magistrates’ Court: knowingly dealing with the proceeds of crime; possessing identification information with an intention to commit or facilitate an offence; and dishonestly undertaking or assisting in the retention of stolen goods.  The Court elected not to record a conviction against Mr Jiang. The sentence that was imposed against him was limited to a fine in the amount of $4,000.

The underlying conduct that led to the criminal proceedings against Mr Jiang arose from a scheme that was apparently “masterminded” by one of Mr Jiang’s friends and business associates. This scheme involved obtaining identification information for various people through mobile phone applications; using that identification information to apply for and obtain credit cards; having the credit cards mailed to vacant properties; collecting the credit cards after they had been mailed to the empty residences; using the credit cards to purchase goods;  and then selling those goods. In a statement that he gave to the police. Mr Jiang told them that he was with his friend and business associate when the friends went to the vacant properties to collect the fraudulently obtained credit cards; that he was aware that his friend was engaged in hiding drivers licences, credit cards, money, cell phones and letters connected to the fraud; and that his friend had asked him to shred a pile of credit cards and drivers licenses that were apparently used in connection with the scheme.

The AAT noted that in the statutory declaration that Mr Jiang provided in support of his citizenship application, he had given what the AAT described as a “sanitized” version of his involvement in his friend’s fraudulent conduct. In comparison to the statement he had given to the police, the statutory declaration that was provided to the AAT was apparently limited to stating that he had become aware of his friend’s fraudulent activities and that he had dismissed the friend from a joint business after learning of the fraud.

The inconsistencies in the material provided by Jiang in his witness statement to the police and in the statutory declaration that he gave to the AAT ultimately “came back to bite him”.  The AAT referred to language in the case of Re Davis which states that making full and frank disclosure of one’s past wrongful acts is essential to demonstrate that one has reformed.  The AAT found that Jiang’s statutory declaration reflected “a reluctance to disclose the full extent of his (Jiang’s) involvement in (his friend’s) fraudulent conduct”.

The lesson here is that if one wants to have any chance of persuading the AAT that one has “changed one’s stripes”, it is essential to openly, honestly and comprehensively own up to one’s prior criminal or otherwise wrongful conduct.  RMAs who are advising citizenship applications can take guidance from the result in Jiang’s case and can encourage and direct their clients to frankly state their acceptance of responsibility for their past acts and their remorse. Trying to whitewash the past, or varnish the truth, is simply not a good strategy (refer to yesterday’s post about how attempting to “cover things up” can often serve only to make things worse). 

It should be noted that Jiang’s citizenship application was lodged only 4 weeks after the date that he was fined in the Melbourne Magistrate’s Court.  The AAT found, quite reasonably, that not enough time had passed since Jiang had been sentenced to allow a conclusion to be drawn that he had become a “reformed character”.  Plainly, some better strategic planning than occurred in this case is advisable when considering the timing of a citizenship application.

Of course, the more time that passes between the time of a criminal offence and the making of the citizenship application, the better are the prospects for showing that one has become a person of good character, and is worthy of the privilege of having Australian citizenship.

 Concordia Pacific migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837