Citizenship, Good Character Requirements & Issues arising from past minor criminal convictions
Over the past 12 months character has increasingly become an issue in citizenship applications. When an eligible person applies for Australian citizenship by conferral they need to demonstrate that they are of ‘good character’ (s21(2)(h) of the Citizenship Act).
This is a general eligibility requirement and may relate to a person’s criminal, immigration or personal history. It appears that there has been a move to capture a wide-range of past conduct under the ‘good character’ requirement. Increasingly, this has come to mean that individuals who have had past minor convictions (including where only a good behaviour bond or other security was imposed) fall foul of the ‘good character’ requirement when applying for citizenship, even where these were previously disclosed in earlier visa applications.
The ‘good character’ requirement is able to capture people in this manner because it is not defined under the Citizenship Act, unlike the Migration Act. Therefore, the ‘good character’ requirement may operate to exclude individuals who had previously passed the character test in relation to a visa application. As there is no definition of what constitutes good character, decision-makers rely on policy direction. In applying policy the decision-maker may look at information from a number of external sources, including sentencing remarks, parole reports, victim impact statements, passenger cards, previous visa applications, criminal records of family members, references from employers and records of dealings with the Department of Immigration, ATO and Centrelink.
Current policy on character specifies:
‘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.
Policy provides the following direction to decision-makers when looking at whether an individual is of ‘good character’:
…an applicant of good character would have the following characteristics.
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 practise 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.
Some of the circumstances for deeming that an individual is of ‘good character’ outlined above may appear reasonable. However, the problem with giving decision-makers such a broad scope for applying this discretion and denying citizenship is that it means that an individual may continue to be punished for past conduct (for which they have already been held accountable) through the denial of Australian citizenship. In practice it appears that more individuals are being caught by the ‘good character’ requirement and being denied Australian citizenship at first instance in circumstances where the citizenship application would previously have been approved.
It is important to note that affected individuals are able to seek review of the decision to refuse Australian citizenship on character grounds through the Administrative Appeals Tribunal, where they may be more likely to get a better outcome.
In addition to the good character requirements, s.24(6) of the Citizenship Act deals specifically with criminal offences and provides that an application must be refused in a number of circumstances, including the following:
where there are any pending criminal matters;
within 2 years of having had a 12 month custodial sentence imposed;
within 10 years of having had more than one 12 month custodial sentence;
within a parole period; and/or
where a good behaviour bond or other security has been imposed and not yet discharged.
Where an application is refused under s.24(6) there is little point appealing to the AAT. Rather the person should wait an appropriate period to be able to show that they have reformed and then apply again with good supporting evidence of their good character.