Different Ministers, different decisions

The relevant sequence of events is as follows:

1. In 2016, the Applicant applied for Australian citizenship.
2. On 13 September 2017, the Minister for Home Affairs' Department wrote to the Applicant and invited him to comment on "adverse information that may lead to a decision to refuse to approve [Mr Hillis] becoming an Australian citizen", by reference to s 21(2)(h) of the Australian Citizenship Act 2007 (Cth), which provided that 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 "adverse information" was a finding that the Applicant had been a member of the Mongols Outlaw Motor Cycle Gang (OMCG) in the past.
3. On 9 March 2018, a delegate of the Minister for Home Affairs decided to refuse his application for Australian citizenship, on the basis of a finding that he failed the character test under s 501(6) of the Migration Act 1958 (Cth) by reason of the "adverse information".
4. The Tribunal then made a order as follows, essentially because the Minister for Home Affairs had agreed to that order: "The decision of the delegate of [the Minister for Home Affairs] is set aside and the matter remitted for reconsideration with a direction that [the Applicant] should not be regarded as not being of good character because of his former membership of the Mongols Outlaw Motorcycle Gang, and a direction that a decision be made under subsection 24(1) of the Australian Citizenship Act 2007 by 24 December 2018".
5. On 21 December 2018, the Minister for Citizenship personally wrote to the Applicant and advised that his application for Australian citizenship had been approved, but noting that the Applicant had to take the "final step" of making a "Pledge of Commitment at an Australian citizenship ceremony".
6. On the very same day, 21 December 2018, the Department wrote to the Applicant and gave him notice that the Minister for Home Affairs intended to consider cancelling his visa, for the very same reasons for which his citizenship had been refused, namely the finding that the Applicant had been a member of the OMCG in the past.
7. On 28 December 2018, the Applicant was advised that the Minister for Home Affairs had decided, pursuant to s 26(3) of the Citizenship Act, to "defer" the Applicant's pledge of commitment, with the result that he did not become an Australian citizen.

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: Is the character test under s 501(6) of the Migration Act 1958 (Cth) applicable to decisions under the Citizenship Act 2007 (Cth)?

Question 2: Does it follow from the Tribunal's direction, the fact that the Minister for Home Affairs formally agreed to that direction and the subsequent approval of the Applicant's citizenship by the Minister for Citizenship that the Minister for Citizenship must have been satisfied that, despite the Applicant's former membership of the OMCG, he was a person of good character?

Question 3: Can a "past conviction alone could provide a probative basis for a finding that there was a risk of reoffending in the context of a case involving the cancellation of a visa"?

Question 4: If the answer to Question 2 is "yes", can it be said that it was "difficult, if not impossible, to reconcile the [Minister for Home Affairs'] finding that there was a risk that [the Applicant] might rejoin the Mongols with the implicit, if not explicit, finding by the Minister for Citizenship that [the Applicant] was a person of good character despite his previous association with the Mongols"?

Question 5: Can it be said that "mere membership of a group which has been or is involved in criminal activity will result in a person failing the character test by reason of s 501(6)(b) of the Migration Act"?

Question 6: Does mere association with a group, organisation or person that has been or is involved in criminal conduct necessarily result in physical or psychological harm to the Australian community?

Question 7: Does it follow from the fact that there is no test for, or definition of, 'good character' for the purposes of the Citizenship Act 2007 (Cth), whereas there is a specific character test in s 501(6) of the Migration Act 1958 (Cth) for the purposes of visa refusal and cancellation decisions, that "the finding that [the Applicant] was of good character for the purposes of the Citizenship Act was entirely irrelevant to the question whether [the Applicant's] visa should be cancelled as a result of him failing the character test in the Migration Act"?

The FCA answered those questions as follows: