When applying for visas particularly permanent visas or applying for citizenship, it is important to be able to meet the ‘good character’ requirement. An interesting decision from April 2020 looks at what it means to be a person of good character. Although a criminal record that includes a term of imprisonment is not necessarily fatal to an application, as can be seen from the below, applications can be refused on this basis.
The Facts for Kenneth Lynch
Kenneth Lynch lodged an application for Australian citizenship in 2017. At the time he was a citizen of the United Kingdom. Mr Lynch had 33 convictions since arriving in Australia. He was convicted of 13 driving and traffic related offences between 1976 and 1991; and 11 general criminal convictions of a minor nature between 1967 and 1991. Finally, and of importance in regards to the citizenship application he was also convicted of nine drug (cannabis) related offences between 1997 and 2011. In 2019 the Department of Home Affairs refused the application as the delegate was not satisfied that Mr Lynch was ‘presently a person of good character’.
As decisions under the Citizenship Act can be reviewed, Mr Lynch applied to the AAT and as a self-represented litigant put forward his submission.
Law and Policy regarding ‘good character’
The question of whether someone is of ‘good character’ might seem an interesting judgement for a court to make. The term is not defined in the legislation but there is a policy document from the Department which provides some information on what the terms means. They refer to a 1996 decision of the Federal Court, Irving v Minister for Immigration which lays out some considerations:
Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
The policy itself makes some further points,
‘Moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:
-characteristics which have been demonstrated over a very long period of time
-distinguishing right from wrong
-behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
The decision of Irving goes into further detail regarding criminal convictions and their impact on character criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.
Another decision Kakar v Minister for Immigration and Multicultural Affairs from 2002 states that the criminal conduct should be thought of in terms of seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender. Further references to other decisions and the policy are referenced with references to abiding by the law and non involvement in drugs.
Further factors include how long since the offending and whether the pattern of behaviour is established which would point to the continuation of the behaviour.
Did he win?
The Department of Home Affairs stated the following about Mr Lynch:
- 44 year period criminal history in Australia
- Declared a drug trafficker in 2011
- Three prison sentences for cultivating, possessing and supplying cannabis
- No evidence of any rehabilitation or courses attended
- No or virtually no mention of the offending in character references
In support of having his application granted, Mr Lynch submitted that he is now a pensioner having been in Australia since a teenager, fought for Australia in the Vietnam War, his mother, sister and brothers all live in Australia and his last offence was 10 years ago.
The AAT found that Mr Lynch’s past criminal offending over such a long time weighed heavily against him, as ‘good character’ should be demonstrated over a long period of time. Further considerations are in the decision but finally the AAT stated ‘There is minimal objective evidence before the Tribunal in support of good character’. They continued
However, he is able to make another application for citizenship in the future. Following a longer period of time free from offending in the community, and further evidence of good character (for example character references from persons aware of the Applicant’s offending, other evidence of rehabilitation such as a report from his psychiatrist, and/or evidence of the completion of rehabilitative courses or counselling), a future application may have some chance of success.
West Aussie Migration is an expert purveyor of migration advice and can advise YOU on your case and any difficulties you are having in preparing an application and are confident we can help you with these applications. We have successfully represented many people just like Mr Lynch before the AAT. Contact West Aussie Migration today if you have any questions, through our website’s contact form or our Facebook page.