Federal Court. Paragraph 21(2)(h) of the Citizenship Act 2007 (Cth) provides 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". Does the fact that the above provision refers to the time the "Minister" makes a decision mean that the Tribunal must assess the applicant's character by reference to the time of the Minister's decision? Or should the Tribunal make that assessment by reference to the time of its own decision? Further, with respect, does this FCA decision stand in contrast to the High Court's majority judgement in SZMTA on the onus of proving that an error was material to the decision?
Subsection 21(2) of the Citizenship Act 2007 (Cth) provides as follows (emphasis added):
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
...
(h) is of good character at the time of the Minister's decision on the application.
The questions to the Federal Court (FCA) were as follows:
Question 1: Does the fact that s 21(2) of the Citizenship Act refer to the time the "Minister" makes a decision mean that the Tribunal must assess the applicant's character as at the time of the Minister's decision? Or should the Tribunal assess the character as at the time of its own decision?
Question 2: Who bears the onus of proving that an error was material to the decision?
The FCA answered those questions as follows: