MQFS and Minister for Immigration and Multicultural Affairs (Citizenship) - [2025] ARTA 268

MQFS and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 268 (25 March 2025)
Applicant:MQFS
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/4380

Tribunal:General Member K. Thornton
Place:Melbourne
Date:25 March 2025

Decision:The Tribunal affirms the decision under review.

.................................[SGD].......................................
General Member K. Thornton
Catchwords
CITIZENSHIP – application for conferral of Australian citizenship – citizen of China – where delegate cancelled approval given – significant debt in China – Tribunal not satisfied Applicant is of good character at time of its decision – decision affirmed
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128 [60].
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 634
Rong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 181 ALD 71
Secondary Materials
Department of Home Affairs, Citizenship Procedural Instructions 4 – Australian Citizenship by Conferral – Person under 18 (reissued 21 October 2021)
Department of Home Affairs, Citizenship Procedural Instructions 10 – Cancellation of Approval and Delay Making the Pledge (reissued 28 January 2022)
Department of Home Affairs, Citizenship Procedural Instructions 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship (issued 10 April 2019)
Department of Home Affairs, Citizenship Procedural Instructions 13 – Best Interest of Child Assessments (issued 10 April 2019)
Department of Home Affairs, Citizenship Procedural Instructions 15 – Assessing Good Character under the Citizenship Act (reissued 26 February 2021).
Statement of Reasons
INTRODUCTION

The Applicant seeks review of a decision of a delegate of the Respondent to cancel the approval of the Applicant’s application for Australian citizenship under s 25(1)(b) of the Australian Citizenship Act 2007 (Cth) (‘the Act’). The delegate was satisfied that, at the time of cancellation, the Applicant was not of good character pursuant to s 25(2)(b)(iii) of the Act.
The Applicant requested a confidentiality order be applied to these proceedings as the Applicant has family residing in China whom she feared might be identifiable by reason of this application. The Respondent did not oppose the making of the Order. The Tribunal agreed to the making of the confidentiality order given the unique factual circumstances of this case.
The hearing was conducted in person in the Melbourne registry of the Administrative Review Tribunal (‘the Tribunal’) on 12 and 13 December 2024. The Applicant was represented by Ms Kylie McInnes of counsel, instructed by Prima Legal. The Respondent was represented by Mr Jonathan Barrington of counsel, instructed by Sparke Helmore Lawyers.
For the following reasons, the Tribunal affirms the decision under review.
BACKGROUND
The Applicant is a 49-year-old citizen of China. The Applicant is married with two children, all of whom are Chinese citizens. The Applicant first arrived in Australia in 2014 with her family on a temporary Business Owner (Subclass 163) visa.[1] She was granted a permanent Business Owner (Subclass 892) visa on 11 September 2020.[2]
[1] Exhibit R2, 13.
[2] Ibid.
On 2 November 2021, the Applicant applied for Australian citizenship by conferral.[3] Her husband also applied for citizenship on that date. The couple’s two children (then aged 14 and 10 years respectively) were applicants on her husband’s application.
[3] Ibid 21-42.
On 28 September 2022, the Minister approved the Applicant’s citizenship application under s 24(1) of the Act.[4] Her husband and children were also granted approval in December 2022. The family’s citizenship ceremony was due to take place on 27 February 2023.
[4] Ibid 60-1.
On 24 February 2023, the Department of Home Affairs (‘the Department’) issued the Applicant with a Notice of intention to consider making a determination to delay the making of a pledge of commitment.[5] Her husband also received the same notification.
[5] Ibid 62-4.
This Notice was issued to the Applicant on the basis that the Department had information to suggest that the Applicant had provided incorrect information in her Business Skills – S/T Sponsored Business Owner (DF 892) application.[6] The Applicant was invited to make submissions in response within 28 days. The correspondence also stated that her citizenship ceremony scheduled to take place on 27 February 2023 had been cancelled.[7] The Applicant was advised not to attend the ceremony ‘as you are not on the ceremony list and will therefore not be conferred as an Australian citizen.’[8]
[6] Ibid 63.
[7] Ibid 62.
[8] Ibid 62.
Despite this, the Applicant and her husband still attempted to attend the ceremony on 27 February but were refused entry.[9]
[9] Exhibit R2, 17.
On 13 April 2023, the Department advised the Applicant that it had made a determination that she could not make the pledge of commitment before 13 April 2024 pursuant to s 26(3) of the Act.[10] This was said to be on the same basis as the previous Notice, that is, that the Department had information to suggest that the Applicant had provided incorrect information on her Business Skills visa application.[11] The Applicant was also advised that her permanent visa also was being considered for cancellation on this basis.[12]
[10] Ibid 67-73.
[11] Ibid 72.
[12] Ibid.
On 30 October 2023, the Department issued the Applicant with a Notice of intention to cancel the approval of her application for conferral of Australian citizenship (the Notice).[13] The Notice advised the Applicant that the Department was considering exercising the discretion under s 25(2) of the Act to cancel the approval of her application for conferral of Australian citizenship on the basis that she was not a person of good character.[14]
[13] Ibid 74-81.
[14] Ibid 76.
The Notice advised that the Department had received information from the Gansu Province Lan Zhou City Intermediate People’s Court in China (the Court) as follows:
·The Applicant and her husband failed to meet their financial obligations under a business contract they entered into with a third party in China which had an execution target of RMB15,433,643 (being approximately AUD3.2 million).[15]
·During the execution process, the Applicant and her husband failed to fulfill their obligations as determined by the legal documents, and in accordance with ‘the Several Provisions of the Supreme People’s Court on Restricting High Consumption and Related Consumption by the Executed Persons’, the Court took measures to restrict high consumption by the Applicant and her husband on 28 August 2022.[16] The restriction period was said to begin from the date of the issuance of the consumption order and will end on the date when the persons subject to the order have fulfilled their obligations.[17]
·A payment of RMB13,311,184.30 was still outstanding.[18]
·Should the Applicant and her husband engage in concealment, transfer, or withdrawal of funds and assets in order to avoid fulfilling their debts, they will be held legally responsible in accordance with the laws of the People’s Republic of China.[19]
·The Applicant and her husband are on the National Restricted High Consumption List in China.[20]
[15] Ibid, 75, Exhibit R1 [9].
[16] Exhibit R1, 75.
[17] Ibid 75.
[18] Ibid 75.
[19] Ibid.
[20] Ibid
The delegate was satisfied that the Applicant has a significant outstanding debt in another country, and that she had failed to abide by a court direction to repay that debt.[21] The delegate advised that ‘(t)his raises concerns that you have not been financially responsible’ and the delegate considered that ‘a person of good character would not fail to follow a court mandate to repay an outstanding debt’.[22]
[21] Ibid 76.
[22] Ibid 76.
The Applicant was invited to comment and provide a written response to the Department within 28 days as to why the approval of her application for Australian citizenship should not be cancelled.[23]
[23] Ibid 76.
On 22 November 2023, the Applicant responded to the Notice and provided the following material:[24]
(a)‘Statutory Declaration’ document dated 21 November 2023;
(b)Various letters of support from neighbours and business acquaintances;
(c)Letter of reference from her employer; and
(d)‘Notarial Certificate’ certifying that the Applicant has no criminal record in China up to 8 August 2019.
[24] Ibid 82-91.
On 3 June 2024, the Applicant was advised that the approval of her application for Australian citizenship by conferral had been cancelled because the Applicant was not of good character under s 25(2)(b)(iii) of the Act (‘the cancellation decision’).[25] The Applicant was advised that under s 25(5) of the Act, the effect of this cancellation decision is that the approval is taken never to have been given.[26] The Applicant was advised that she will need to make another application and meet all the requirements if she wishes to become an Australian citizen.[27] The same decision was taken in respect of her husband and her children, who were applicants on her husband’s application for citizenship.
[25] Ibid 18.
[26] Ibid.
[27] Ibid.
On 28 June 2024, the Applicant applied (along with her husband and children applying separately) to the then Administrative Appeals Tribunal for review of the cancellation decision.[28] On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
[28] Ibid 1-9.
TRIBUNAL HEARING
The Tribunal jointly heard the applications of the Applicant, her husband and their children. The Tribunal received into evidence the following material:
(a)Exhibit A1: Applicant’s Statement of Facts, Issues and Contentions dated 25 October 2024 (SOFIC);
(b)Exhibit A2: Applicant’s Reply Statement of Facts, Issues and Contentions dated 29 November 2024 (Reply SOFIC);
(c)Exhibit A3: Statement of the Applicant dated 25 October 2024 and attachments;
(d)Exhibit A4: Statement of Mr Guo dated 18 October 2024;
(e)Exhibit R1: Respondent’s Statement of Facts, Issues and Contentions dated 22 November 2024; and
(f)Exhibit R2: T-documents comprising 231 pages.
The Applicant gave evidence through the assistance of an interpreter. The Applicant indicated through her counsel that she had been advised about her privilege against self‑incrimination and that she understood this privilege.
Despite the applications being heard jointly, the Tribunal has considered the Applicant’s materials separately to that of her husband and has applied the relevant law and policy to the facts and circumstances of the Applicant’s case.
ISSUES TO BE DETERMINED
The issues to be determined by the Tribunal are:
(a)Whether it is satisfied that, at the time of its decision, the Applicant is not of good character under s 25(2)(b)(iii) of the Act; and
(b)If the Tribunal is satisfied of the first issue, whether the Tribunal should exercise the discretion under s 25(1) to cancel the approval given to the Applicant under s 24(1) of the Act.
Applicant’s contentions
The Applicant contends she is of good character. It is contended that the Applicant has broken no laws nor acted irresponsibly and that the inability to pay the judgment debt is not the result of defiance, but rather of genuine financial hardship.
It is further contended that even if the Tribunal finds that the Applicant is not of good character, the discretion to cancel her citizenship approval should not be exercised as the cancellation would result in the mandatory cancellation of her children’s citizenship applications (which are subject to a separate review application before the Tribunal). It is submitted that the exercise of the discretion in favour of cancellation would not be in the best interests of the children.
Respondent’s contentions
The Respondent contends that the Applicant is not of good character because she was aware of the debts owing in China, made no attempt to repay those debts, and has no intent to repay those debts. It is argued that the Applicant is aware that she is on the Chinese Restricted High Consumption List and she cannot return to China until she repays the debt. The Respondent contends that the Applicant’s lack of good character is decisive of the matter, and the discretion should be exercised to cancel the approval.
The Respondent submits that it remains open for the children to apply for Australian citizenship in their own right and that the cancellation of the Applicant’s approval does not finally determine their eligibility for citizenship. It is submitted that this is not a basis for refusing to exercise the discretion.
LEGISLATIVE FRAMEWORK
Section 21(1) of the Act provides that a person may apply to the Minister to become an Australian citizen. Section 24(1) provides that if a person makes an application under s 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Section 20 provides that a person becomes an Australian citizen if the Minister decides under s 24(1) to approve the person becoming an Australian citizen and (if the person is required to make a pledge of commitment to become an Australian citizen) the person makes that pledge.[29]
[29] Sections 26 and 27 outline the circumstances under which a person make a pledge of commitment and the pledge of commitment is to be made.
Section 25 of the Act provides that the Minister may cancel an approval:
(1)The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a)the person has not become an Australian citizen under section 28; and
(b)either of the following 2 situations apply.
Eligibility criteria not met
(2)The first situation applies if:
(a)the person is covered by subsection 21(2), (3) or (4); and
(b)the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i)     not a permanent resident; or
(ii)    not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
(iii)     not of good character.
Failure to make pledge of commitment
(3)The second situation applies if:
(a)the person has failed to make a pledge of commitment within 12 months after the day on which the person received notice of the approval; and
(b)the person’s reason for the failure is not one that is prescribed by the regulations for the purposes of this subsection.
Cancellation of child’s approval
(4)If:
(a)a child aged under 16 makes an application under section 21 at a particular time; and
(b)1 or more responsible parents of the child make applications under section 21 at that time; and
(c)the Minister decides under section 24 to approve the child and 1 or more of the responsible parents becoming Australian citizens; and
(d)the Minister cancels the approval given to each responsible parent;
the Minister must, by writing, cancel the approval given to the child.
Effect of cancellation
(5)If the Minister cancels an approval given to a person, the approval is taken never to have been given.
Note: A person cannot become an Australian citizen under this Subdivision unless the Minister approves the person becoming an Australian citizen. This subsection has the effect that the person will need to make another application if the person wants to become an Australian citizen.
Section 52(1)(c) provides that an application may be made to the Tribunal for review of a decision under s 25 to cancel an approval given to a person under s 24.
Revised Citizenship Procedural Instructions
The Revised Citizenship Procedural Instructions (‘CPIs’) provide guidance to decision‑makers exercising powers and discharging their functions under the Act. Decision‑makers undertaking merits review should have regard to such policy unless there are cogent reasons to not do so.[30]
[30] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645.
The Tribunal was directed to the following relevant CPIs:
(a)CPI 4 – Australian Citizenship by Conferral – Person under 18 (reissued 21 October 2021);
(b)CPI 10 – Cancellation of Approval and Delay Making the Pledge (reissued 28 January 2022);
(c)CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship;
(d)CPI 13 – Best Interest of Child Assessments (issued 10 April 2019); and
(e)CPI 15 – Assessing Good Character under the Citizenship Act.
The Tribunal has had regard to and applied the relevant CPIs, there being no cogent reason not to do so.
Good character
CPI 15 notes that the term ‘good character’ is not defined in the Act. It notes that most Federal Court and Tribunal decisions have adopted the definition from the Full Federal Court’s decision in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[31]
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 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.
[31] (1996) 68 FCR 422, 431-432.
Clause 3.3 of CPI 15 states that the phrase “enduring moral qualities” encompasses the following concepts:
·characteristics which have endured over a long period of time;
·distinguishing right from wrong; and
·behaving in an ethical manner, conforming to the rules and values of Australian society.
CPI 15 also provides that the ‘good character necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.’ It also provides that a ‘decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.’
Clause 4 of CPI 15 states that, as a general proposition, a person who is of good character would:
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds, pay debts to the Commonwealth);
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:
ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;
oevading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
oknowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
oconcealing criminal convictions;
ofraud against the Commonwealth such as tax fraud or Centrelink fraud;
ogiving false names and/or addresses to police;
·not be the subject of any extradition order or other international arrest warrant;
·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;
·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide;
·not be involved in terrorist organisations or acts of terrorism overseas or in Australia.

Clause 4 of CPI 15 further provides that:
Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately, a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.
Clause 14.2 of CPI 15 provides that decision-makers must weigh up all of the relevant evidence in determining whether or not the person is of good character at the time of decision. The CPI contains an extract from a decision of Prasad and Minister for Immigration and Ethnic Affairs where it was held:[32]
a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.
[32] [1994] AATA 326 [7].
Clause 14.2 also provides that a ‘decision-maker needs to look holistically at an applicant’s behaviour over time. The amount of time depends on the merits of each case, but in most cases will go back prior to any visa application if the person is applying for citizenship by conferral.’
Cancellation of approval and best interests considerations
The Tribunal also needs to have regard to the other relevant CPIs dealing with cancellation of approval. Included in this is a consideration of the best interests of any children who may be affected by the decision.
CPI 10 provides policy guidance when dealing with the cancellation of approval and delay of making the pledge. Clause 3 deals with the circumstances under which the eligibility criteria are not met with regard to s 25(2) of the Act. The CPI notes that this ‘is a discretionary power and it is expected that delegates will make a fair and reasonable decision based on the merits of the individual case.’[33]
[33] Ibid 220.
Clause 5.2 deals with cancellation of a child’s approval under s 25(4) of the Act. This clause directs decision-makers to consider the best interests of any child who may be affected by the decision by reference to CPI 13 – Best Interest of Child Assessments (issued 10 April 2019).
Finally, decision-makers must also have regard to CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship if a person would suffer significant hardship, disadvantage or detriment in relation to a decision under the Act.
ANALYSIS OF ISSUES
Is the Applicant of good character?
It is necessary to set out some of the background facts in this matter which have been helpfully summarised by the Applicant in her SOFIC.
The Applicant’s husband has been involved in cabinet manufacturing and sales in China since around 2005.[34] He developed a software system to operate an e-commerce platform for online sales. The Applicant’s husband was granted the intellectual property rights for that software.[35]
[34] Exhibit A1, [5].
[35] Ibid.
In May 2017, the Applicant’s husband entered into a contract with a business partner (Mr Zhang) in order to grow his business in China.[36] The relationship soured and the Applicant’s husband reportedly lost control over the patented software and company funds. The Applicant’s husband reports that at some point, the police became involved.[37]
[36] Ibid [6].
[37] Ibid.
In May 2018, the Applicant was visiting China.[38] She was told by officials at Shanghai Airport that there may be some restrictions on her leaving China. She was advised to attend the local police station, which she did, and gave a verbal statement. She was then allowed to leave the country.[39]
[38] Ibid [7].
[39] Ibid.
On 3 July 2018, the Applicant’s husband signed an agreement with Mr Zhang through which he agreed to pay Mr Zhang the sum of 12.86 million yuan in instalments from August 2018 to February 2019 (the agreement).[40] The Applicant’s husband paid an initial amount the next day but then returned to Australia on 21 July 2018.[41] He did not comply with the remainder of the agreement.
[40] Ibid [8].
[41] Ibid.
In October 2018, the Applicant entered and exited China without incident, but has not been to China since.[42]
[42] Ibid [9].
On 11 October 2018, Mr Zhang filed a civil case naming the Applicant, her husband and their business as defendants.[43] The legal representative for the defendants was Mr Guo, who was the executive director of the company.[44] The Court summonsed the defendants but the Applicant and her husband alleged that they did not receive any summons and did not know about the case until after the judgment was given.[45] This is consistent with the Mr Guo’s evidence that he did not receive the summons or know about the court proceedings.[46] The Court Order indicates that the defendants did not appear and the court proceeded with the trial in their absence.[47]
[43] Ibid [10].
[44] Ibid.
[45] Ibid.
[46] Exhibit A4, 1.
[47] Ibid.
On 18 March 2020, the Court found that the Applicant’s husband failed to fulfill his repayment obligations under the agreement.[48] In relation to the Applicant’s liability, the Court held that the defendants are husband and wife and that the investment funds were joint debts incurred during their marriage.[49]
[48] Ibid [11].
[49] Ibid.
The Court found in Mr Zhang’s favour and ordered that the Applicant and her husband repay Mr Zhang the sum of 15.332 million yuan, plus fees of 118,792 yuan, bringing the total amount owed (before interest) to 15,450,792 yuan.[50] As noted by the Applicant in her SOFIC, this is approximately $3.2 million in Australian dollars.[51]
[50] Ibid [12].
[51] Ibid.
The Applicant states that she first became aware of the judgment debt when her husband told her about it in April 2020.[52] She denied ever knowing about the Court proceeding and was never provided with any documents before a trial.[53]
[52] Exhibit A3 [8].
[53] Ibid.
The Applicant understands that she is jointly liable for the judgment debt, but states she was never a party to any contract with Mr Zhang.[54] She acknowledges that because her husband was a party to the contracts with Mr Zhang, she is liable for paying the judgment debt.[55]
[54] Ibid [12]-[13].
[55] Ibid [13].
The Applicant also maintains that she is fully committed to repaying the debt, as it is important to her to eventually return to China to visit family.[56] She states that although her and her husband’s finances are linked together through their businesses, she does not independently have the means to pay off the debt.[57] The Applicant stated that her inability to pay off the debt in China is not due to a lack of desire or intention.[58] Her immediate focus is on her family and supporting their life and businesses in Australia. She is determined to settle the debt in China as soon as their financial situation allows.[59]
[56] Ibid [16].
[57] Ibid [15].
[58] Ibid [16].
[59] Ibid.
The general principles of ‘good character’ are helpfully set out in the Applicant’s SOFIC and are adopted by the Respondent.[60] The Applicant notes that in the absence of any legislative definition of the term ‘good character’, Parliament intended that the term be used in a broad way.[61] The Applicant also relies on Lee J’s description of ‘good character’ in Irving v Minister for Immigration, Local Government & Ethnic Affairs as quoted at paragraph 33 above.
[60] Exhibit A1 [27]-[34], Exhibit R1 [15].
[61] Exhibit A1 [28] citing Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128 [60].
The Tribunal has also had regard to the guidance provided by CPI 15 and CPI 10 in considering good character.
The Tribunal accepts that the existence of a debt does not necessarily mean that a person is not of good character. However, the size of the debt and the circumstances in which it was incurred is relevant to the Tribunal’s consideration.
Paragraph 4 of CPI 15 states that, as a general proposition, a person who is of good character would respect and abide by the law in Australia and other countries, would be honest and financially responsible and would not practise deception or fraud with the Australian Government or other organisations.
Although not strictly relevant, the paragraph 11.1 of CPI 15 provides examples of how debts owed to the Commonwealth should be approached in assessing good character under the Act:
If there are debts to the Commonwealth (for example, a litigation debt) the decision‑maker should check if the applicant has a payment plan in place and whether they have been complying with the plan. If no action has been undertaken to repay the debt, the applicant should be invited to comment on the reasons for this lack of action. It is important to bear in mind that a decision not to prioritise the repayment of a debt does not necessarily reflect on a person’s overall character. For example, if the applicant is experiencing financial stress because of unemployment, rent, childcare etc., there may be an acceptable explanation for a failure to make arrangements for repay a debt to the Commonwealth.
Debts to the Commonwealth that have come about because of the provision of incorrect, fraudulent or misleading information by the applicant are more serious than a debt accrued as a result of litigation. When the applicant has been convicted of fraud against the Commonwealth, this may carry significantly more weight depending on the circumstances of the case and whether there are mitigating factors.
Although the debt owed by the Applicant is not a debt owed to the Commonwealth, the general principles can be applied. The decision to prioritise the debt does not necessarily reflect on a person’s overall character where a person is experiencing financial stress because of unemployment, rent, childcare etc. This is not the situation the Applicant finds herself in. The Applicant provided evidence to the Tribunal that she is employed as an interior designer in one of the couple’s businesses and is focused on supporting her family, life and businesses in Australia.[62] In addition, the Applicant did not disclose the fact of the judgment debt to the Department in her application for Australian citizenship in November 2021 despite acknowledging having known about the debt since April 2020.
[62] Exhibit A3 [15]-[16].
When the matter was brought to the Applicant’s attention by the Department in October 2023, the Applicant filed a ‘Statutory Declaration’ document with the Department dated 21 November 2023 in which she denied any involvement or knowledge of the details of the agreement between her husband and Mr Zhang.[63] She described the information provided by the Court as ‘extremely one-sided and insufficient to restore the whole picture of the whole incident’.[64] She stated that she hopes ‘these injustices and harms can be kept away from me and my family, which is the most important reason why I chose to become an Australian’.[65]
[63] Exhibit R2, 83.
[64] Ibid.
[65] Ibid.
As noted by the Respondent, the Applicant’s statements are at odds with her later statement to the Tribunal that she is fully committed to repaying the debt as soon as their financial situation allows.[66] The Applicant submits that there is no such contradiction, and that she was aware of some of the dealings between her husband and Mr Zhang, but not all.[67] The Applicant submits that there is no basis to find that the Applicant provided misleading information to the Department.[68]
[66] Exhibit A3 [16].
[67] Exhibit A1 [42].
[68] Ibid [43].
The Tribunal accepts the Respondent’s submission that, on a holistic view of the Applicant’s character, she was aware of the judgment debts since at least April 2020 and has made no attempts to repay those debts. The Tribunal is not persuaded by the Applicant’s claims that she is ‘fully committed’ to paying off these debts. The resolution to settle the debt ‘as soon as our financial situation allows’ does not provide any concrete timeframe as to when this might occur. As the noted by the Respondent, even on a conversative view of the facts, the Applicant chose to ignore the debts, or in the alternative, absconded to avoid paying them. The Respondent submits that neither option reflects good character.[69] The Tribunal agrees with this submission. The Tribunal therefore makes a finding that because of the relevant facts and circumstances of the judgment debt (being a debt of some AUD3.2 million), and the Applicant’s attempts to diminish her knowledge of it to the Department, the Applicant is not of good character.
[69] Exhibit R1 [23].
The Respondent further submits that the Applicant’s decision to attend the citizenship ceremony despite being directed not to also reflects on the Applicant’s character.[70] The Applicant states that she attended the ceremony so she could speak to someone about the situation.[71] She states she was not rude and did not try and force her way in.[72]
[70] Ibid [22.5].
[71] Exhibit A3 [18].
[72] Ibid [19].
The Tribunal is less persuaded that the Applicant’s attendance at the citizenship ceremony reflects on her character. The Tribunal accepts the Applicant’s explanation that she was confused about receiving an email from the Department late on the Friday before the ceremony was due to take place on the Monday. The Tribunal does not consider that the Applicant’s actions in attending the ceremony despite being directed not to is not reflective of good character.
Having been satisfied that the Applicant is not of good character, the Tribunal needs to consider whether the discretion in s 25(1) should be exercised to cancel the approval of citizenship.[73]
[73] Exhibit A1 [47] citing Rong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 181 ALD 71 [109]-[111].
If satisfied the Applicant is not of good character, should be the discretion be exercised?
The Applicant submits that a factor weighing strongly against exercising the discretion to cancel her citizenship approval is that it would be in the best interests of her children.[74]
[74] Exhibit A1 [48].
The Applicant relies upon the close connection her children have with the Australian community.[75] It is noted that the youngest child has lived in Australia for the vast majority of his life, and that the eldest child speaks of the importance of becoming an Australian citizen.[76] The Applicant also notes that the children’s citizenship is particularly important as they move towards higher education because permanent residents are unable to access government-provided financial assistance such as HECS.[77] In addition, the Applicant submits that both children aspire to represent Australia at international sport events, which it is submitted they cannot do unless they are citizens.[78]
[75] Ibid [52].
[76] Ibid.
[77] Ibid [53].
[78] Ibid [54].
The Respondent submits that a finding that the Applicant is not of good character, in the circumstances of this case, is decisive.[79] The Respondent submits that the Applicant’s argument that a denial of citizenship would deny the children access to government-funded financial assistance such as HECS is not a strong discretionary feature.[80]
[79] Exhibit R1 [24].
[80] Ibid [25]-[26].
The Respondent relies on the intended aim of s 24(5) as found in the Explanatory Memorandum of the Australian Citizenship Bill 2007 (Cth), which was said to reflect the current policy that a child who has applied at the same time as a responsible parent does not become an Australian citizen in circumstances where both parents’ applications are not approved because to do so would leave open the possibility for the child being prevented from obtaining the citizenship of their parent’s birth because they are an Australian citizen.[81]
[81] Ibid [27]-[29].
The Respondent also notes that it remains open for the children to apply for Australian citizenship, separately from their parents.[82] The Respondent submits that because it remains open for the children to apply for Australian citizenship, this matter does not weigh strongly in the Tribunal’s discretion.[83] The Applicant submits in her Reply SOFIC that whilst the children may be eligible for citizenship, eligibility does not guarantee approval.[84] The Applicant relies upon relevant policy which suggests that any application by children whose responsible parent is not an Australian citizen would be denied citizenship unless significant hardship or disadvantage would result from the refusal.[85]
[82] Ibid [29].
[83] Ibid [30].
[84] Exhibit A2 [8].
[85] Exhibit A2 [9] relying on CPI 4 – Australian citizenship by conferral – a person under 18 and CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship.
Paragraph 5.2 of CPI 10 – Cancellation of Approval and Delay Making the Pledge provides that when considering whether or not to cancel an approval under s 25(1), consideration must be given to the best interest of any child who may be affected by the decision.[86] CPI 13 provides policy guidance when considering the best interests of the child. As noted by the Applicant, the factors that may be relevant to this consideration are informed in part by the principles of the Convention on the Rights of the Child.[87]
[86] Exhibit R2, 224.
[87] Exhibit A1 [51].
The Tribunal has considered the arguments of each party and the relevant policy guidance. The Tribunal has determined that the discretion should be exercised to cancel the approval given to the Applicant. Although the Tribunal finds that the best interests of the children are a relevant factor, the Tribunal notes that the children, as permanent residents, will be able to access tertiary study. Paragraph 3.2 of CPI 12 specifically addresses claims that the person will suffer significant hardship, disadvantage or detriment if they are unable to afford the higher fees imposed on some non-citizens. As noted in the policy, Australian citizenship is not a requirement to study in Australia. Further, permanent residents are eligible for Commonwealth supported places, where available. The Applicant’s children are permanent residents. The Tribunal finds that the best interests of the children will only be slightly affected by a decision to cancel the approval of the Applicant’s citizenship on the basis of the relevant policy guidance as set out in CPI 13. This does not outweigh the considerations in favour of exercising the discretion to cancel the approval of citizenship.
The Tribunal concludes that the discretion should be exercised, and the approval given to the Applicant should be cancelled.
CONCLUSION
The Tribunal is satisfied that the Applicant is not of good character.
Having been so satisfied, the Tribunal was required to consider whether to exercise the discretion to cancel the approval given to the Applicant under s 24. The Tribunal has carefully weighed all the competing evidence, submissions and applicable policy guidance. The Tribunal has determined that the discretion should be exercised, and the approval given to the Applicant under s 24 should be cancelled.
DECISION

It follows that the decision under review is affirmed.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of General Member K. Thornton

............................[sgd]............................................
Associate
Dated: 25 March 2025

Dates of hearing: 12 and 13 December 2024

Counsel for the Applicant: Ms Kylie McInnes

Solicitors for the Applicant: Prima Legal

Counsel for the Respondent: Mr Jonathan Barrington

Solicitors for the Respondent: Sparke Helmore Lawyers

Dates of hearing:	12 and 13 December 2024
Counsel for the Applicant:	Ms Kylie McInnes
Solicitors for the Applicant:	Prima Legal
Counsel for the Respondent:	Mr Jonathan Barrington
Solicitors for the Respondent:	Sparke Helmore Lawyers