Joud and Minister for Immigration and Multicultural Affairs (Practice and procedure)
[2025] ARTA 64
•17 January 2025
Joud and Minister for Immigration and Multicultural Affairs (Practice and procedure) [2025] ARTA 64 (17 January 2025)
Applicant/s: Mahmoud Joud
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2023/6189
Tribunal:General Member A. Maryniak KC
Place:Melbourne
Date:17 January 2025
Interlocutory Decision:
The Tribunal is permitted to take into account in its assessment of the totality of the Applicant’s conduct, pursuant to section 21(2)(h) of the Australian Citizenship Act 2007 (Cth):
(a) the offences for which no conviction was recorded against the Applicant as an adult; and/or
(b) the conduct in which it is alleged the Applicant engaged, which forms the basis of any charges for which the Court did not record a conviction against the Applicant as an adult.
..............................[SGD]..........................................
General Member A. Maryniak KC
Catchwords
CITIZENSHIP – Refusal of citizenship by conferral – applicant failed to pass character test under paragraph 21(2)(h) of the Citizenship Act – preliminary question – whether the Tribunal is permitted to take into account non-convictions in its character assessment – whether the Tribunal is entitled to consider the underlying conduct of the non-convictions – authorities considered – Tribunal finds non-convictions may be taken into account
Legislation
Australian Citizenship Act 2007 (Cth)
Crimes Act 1914 (Cth)
Migration Act 1958 (Cth)
Sentencing Act 1991 (Vic)
Cases
BOY19 v Minister for Immigration and Border (2019) 165 ALD 39
Grass v Minister for Immigration and Border Protection [2015] 231 FCR 128
Kuster v Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3486
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 409 ALR 234
Mohammadi v Minister for Immigration Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 4433
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468
WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 465
Statement of Interlocutory Reasons
The Applicant seeks review of a decision made 31 July 2023 refusing his application for citizenship by conferral. The application is under section 24(1) of the Australian Citizenship Act 2007 (Cth) (‘the Act’).
At the commencement of the two-day hearing set down for 25 and 26 September 2024, the Applicant’s Counsel raised generally a preliminary issue which he, with Mr Brown for the Respondent concurring, submitted may have impacted upon the hearing of the application for review.
During the course of the morning, at the request of the Tribunal, the Applicant’s Counsel, in consultation with Mr Brown for the Respondent, was able to reduce the preliminary issue to written form, as a preliminary question. The Tribunal was content to deal with the agreed preliminary question on the basis that, as both parties submitted, it be dealt with first prior to hearing the substantive application, which as a consequence had to be adjourned to a date to be fixed.[1]
[1] The Applicant has subsequently withdrawn his Application.
On consideration of the agreed preliminary question, after hearing the submissions of the parties relating to it, the Tribunal fine-tuned it so that it appropriately related directly to the application for review.
The preliminary question is:
On the application for review of a decision that the Applicant for citizenship is not of good character for the purposes of section 21(2)(h) of the Act, is the Tribunal permitted to take into account in its assessment of the totality of the Applicant’s conduct:
(a) the offences for which no conviction was recorded against the Applicant as an adult; and/or
(b) the conduct in which it is alleged the Applicant engaged, which forms the basis of any charges for which the Court did not record a conviction against the Applicant as an adult?
The Tribunal delivered oral reasons for this interlocutory decision on 30 September 2024. The Tribunal now provides such reasons in writing.
In respect of part (a), whilst both parties submitted that the answer is ‘No’, the Tribunal disagrees that, “the offences for which no conviction was recorded against the Applicant as an adult,” should not be taken into account for the reasons set out below.
First it is necessary to look at the nature of the application for review before the Tribunal. The Tribunal, as presently constituted, has previously summarised the applicable legal principles: see, for example, Mohammadi v Minister for Immigration Citizenship and Multicultural Affairs(Citizenship) [2022] AATA 4433 (‘Mohammadi') at paragraphs 10 to 20:
10. Pursuant to s 24(1A) of the Act, the Minister (and hence now the Tribunal) must not approve an application for Australian citizenship unless the Applicant satisfies the relevant eligibility requirement under s 21 of the Act; apropos this review, s 21(2)(h). The Tribunal must be satisfied that the Applicant is of ‘good character’ at the time of this decision by forming an “opinion requiring an evaluative judgement” and by reaching “an affirmative belief that the applicant is a person of good character”.
11. In determining ‘good character’ the Tribunal is to look holistically at an applicant’s behaviour over time in order to be satisfied of ‘enduring moral qualities’ within the prospective Australian citizen. Such phrase, as guided by the Citizenship Policy Instruction 15 — Assessing Good Character under the Citizenship Act (CPI 15), encompasses the following:
(a) Characteristics which have been demonstrated over a long period of time;
(b) Distinguishing right from wrong; and
(c) Behaving in an ethical manner, conforming to the rules and values of Australian society.12. CPI 15 further sets out examples of characteristics of a person of good character and they do not include those who practice deception or fraud in their dealings with the Australian Government or other organisations. For example, intentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications.
13. Section 50 of the Act provides that it is an offence to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application for Australian citizenship.
14. The Tribunal is to consider a range of events and conduct connected with the Applicant.
15. O’Bryan J in BOY19, engaged in a substantial analysis of the meaning of ‘good character’ in this context. Since not defined, the Parliament intended the term to be used in a broad way:
(a) One looks to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former;
(b) It does not have a fixed and precise content;
(c) It imports a discretionary value judgement to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions; and
(d) It requires a judgment as to whether any proven deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.16. O’Bryan J accepted that “[t]he subject matter, scope and purpose of the Act is informed by its Preamble which states:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:(a) By pledging loyalty to Australia and its people;
(b) By sharing their democratic beliefs
(c) By respecting their rights and liberties; and
(d) By upholding and obeying the laws of Australia.These ideals of diversity, democracy and liberty are to be assessed “by moral qualities that are regarded as a necessary concomitant of Australian citizenship”
17. As to the ‘satisfied’ requirement in s 21(2)(h) of the Act, the word:
is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities... the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite... the applicant’s good character, is not a fact to be proved but an opinion requiring an evaluative judgment. A standard of proof, such as balance of probabilities, is incapable of application to such an opinion.[12]
The absence of an evidentiary burden of proof does not mean that there is an absence of a legal standard of satisfaction. In the context... satisfaction requires that the decision-maker reach an affirmative belief that the applicant is a person of good character. It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character.18. The decision making power is therefore to be exercised reasonably.
19. Part of the task is to assess the relative weight to be given to conduct that reflects positively or negatively on the Applicant’s character.
20. Respect for the institutions of government including government departments is consistent with being of ‘good character’ in the statutory sense. Such respect can be characterised as a moral quality that is relevant to citizenship.
Keeping the principles to be applied in mind, it is then necessary to take a little journey through some recent High Court and Federal Court authorities to provide the background and foundation for the determination of the Tribunal as to the preliminary question.
10. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton[2] the High Court judgment was in the context of a mandatory visa cancellation decision under section 501 of the Migration Act 1958 (Cth) (the ‘Migration Act’) and offending by an applicant as a child. It is clearly distinguishable from this application.
[2] (2023) 409 ALR 234 (‘Thornton’).
11. Thornton was discussed in Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs[3], the High Court again dealing with a section 501 visa cancellation decision, at [35] to [46]. Similarly, this case involved offending as a juvenile. Again, this case is distinguishable from a section 21(2)(h) citizenship application.
[3] [2024] HCA 6.
12. Both High Court decisions were discussed in the consent judgment in WKBF v Minister for Immigration, Citizenship and Multicultural Affairs.[4] The consent judgment was based upon a narrow concession proffered by the Respondent, essentially conceding part (a) only of the agreed preliminary question. WKBF again related to a section 501 visa cancellation decision, but it did involve offending as an adult for which no convictions were recorded. Again, that case is distinguishable, as is the case of Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs.[5]
[4] [2024] FCA 465 (‘WKBF’); See now section 501M of the Migration Act.
[5] [2024] FCA 468.
13. By section 8(2) of the Sentencing Act 1991 (Vic) (‘Sentencing Act’):
Except as otherwise provided by this or any other Act, a finding of guilt without the recording of a conviction must not be taken to be a conviction for any purpose.
14. By section 85ZR(2)(b) of the Crimes Act 1914 (Cth):
Despite any other Commonwealth law, where under a State law such as section 8(2) above, a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State… and (b) the person shall be, in any State, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State […], never to have been convicted of that offence.
15. In WKBF the court stated that:
The effect of section 8(2) of the Sentencing Act is thus to take a person against whom no conviction is recorded as having never have been convicted of that offence.
However, that does not stand for the proposition that such offending itself has not occurred in the context of the section 21(2)(h) task.
16. The Applicant has been found by a Court to have committed various offences, the elements of which have been established. However, during the sentencing phase no conviction has been recorded.[6] In performing its evaluative task in assessing the ‘good character’ of the Applicant, pursuant to section 21(2)(h) of the Act, the Tribunal must consider the Applicant ‘as having never been convicted of that offence [or offences]’.
[6] T-Documents p 10.
17. Where no recording of a conviction has occurred, such must not be taken to be a conviction for any purpose: as per section 8(2) of the Sentencing Act. However, this statutory provision directed at the sentencing phase does not extend beyond it, hence it does not preclude the Tribunal from taking into account the offending per se in its broad-ranging task pursuant to s 21(2)(h).
18. The Tribunal’s task, pursuant to section 21(2)(h), is clearly distinguishable from the Tribunal’s task in reviewing a mandatory visa cancellation decision. The fact of the offending resulting in no conviction being recorded may be considered by the Tribunal and it is then up to the Tribunal to determine what weight it gives such offending in conducting the evaluative process under section 21(2)(h). In conducting that process, the Tribunal must not consider the Applicant to have been in any way convicted of that particular offending.
19. In respect of part (b) of the preliminary question, the Applicant submits the answer should be, ‘No’, and the Respondent submits the answer should be, ‘Yes’. In light of the above reasoning in respect of part (a) of the preliminary question, the Tribunal is also not satisfied that it should be prevented from examining and considering the underlying conduct associated with the particular offending linked to ‘without convictions’ sentences.
20. To exclude such conduct of the Applicant would undermine and be contrary to the approach the Tribunal is to take in this application for review, namely, to evaluatively and wholistically assess whether the applicant is of good character: see also the discussion of BOY19[7] in the relevant paragraphs from Mohammadi.
[7] BOY19 v Minister for Immigration and Border (2019) 165 ALD 39.
21. Such an assessment requires the Tribunal to look at all of the Applicant’s conduct whilst in Australia, noting that ‘good character’ is not defined in the Act and is to be broadly interpreted. As the Full Court of the Federal Court stated:
“Parliament clearly intended the term to be used in a broad way and refrained from taking the approach adopted in the Migration Act of giving specific content to a character criterion.”[8]
[8] Grass v Minister for Immigration and Border Protection [2015] 231 FCR 128 at [60].
22. Hence, in respect of both parts (a) and (b) of the preliminary question, the Tribunal’s answer is “Yes”. For completeness, the Tribunal notes that the decision in Kuster v Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3486, is distinguishable on its facts.
I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of General Member A. Maryniak KC |
................................[SGD]........................................
Associate
Dated: 17 January 2025
| Dates of hearing: | 25 and 30 September 2024 |
| Counsel for the Applicant: | Mr Greg Hughan |
| Solicitors for the Applicant: | Australian Migration Lawyers |
| Advocate for the Respondent: | Mr David Brown |
Solicitors for the Respondent: Australian Government Solicitor
1
1
4