FCA: the AAT applied the wrong test under s 21(2)(h) of the Citizenship Act 2007 by stating that it was not comfortably satisfied that the applicant was of good character; further, 'lack of responsiveness... in providing documentation to [the Department]... is conduct that...'
Court: Federal Court of Australia
Respondents: Minister for Immigration and Border Protection; AAT
Judgement (for the applicant): O'BRYAN J
Summary and discussion
The Minister refused the applicant's application for citizenship. The applicant applied to the AAT for review of the Minister's decision.
The AAT found that the applicant did not satisfy s 21(2)(h) of the Citizenship Act 2007, which read as follows:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
is of good character at the time of the Minister’s decision on the application.
The terms "good character" were not defined in the legislation.
The AAT affirmed the Minister's decision and its reasons included the following passage (emphasis in the court decision):
The assessment of the Applicant’s character in this case has not been easy. The Applicant has many qualities which make for a good citizen, but I find that it is a feature of his character that he is prepared to act dishonestly and with limited candour in his dealings with government agencies when he perceives that it is to his advantage to do so. On balance, I am not comfortably satisfied that his dishonesty and lack of candour in such dealings is outweighed by the positive aspects of his character.
One of the reasons for finding that the applicant was dishonest involved the applicant's 'tardiness, or lack of responsiveness, in providing documentation to' the Department.
The applicant "appealed" the AAT's decision to the Federal Court (FCA) under the AAT Act on the following grounds:
- Ground 1: 'the Tribunal erred in concluding that s 21(2)(h) of the Act required it to be “comfortably satisfied” that the applicant was a person of good character, when the correct test required the Tribunal to be “satisfied”'
- Ground 2: the applicant's 'tardiness, or lack of responsiveness, in providing documentation to [the Department], when there is no intention to hide information or to mislead or deceive, and the tardiness works against the [applicant's] best interests, is conduct that is [not] relevant to the assessment of the person’s character under s 21(2)(h)'.
O'Bryan J held as follows:
60 As a matter of ordinary expression, the phrase “comfortably satisfied” has a different meaning to “satisfied”. The expression “comfortably satisfied” ordinarily means “more than satisfied” or “well and truly satisfied” of the relevant fact or matter...
66 ... The Member ...
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