FEDERAL COURT OF AUSTRALIA

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574

ORDERS

THE COURT ORDERS THAT:

1.    The Tribunal’s decision of 22 November 2018 be set aside.

2.    The matter be remitted to the Tribunal to be heard and decided again according to law.

3.    The first respondent pay the costs of the applicant.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal (Tribunal) made on 22 November 2018.

2    The applicant is a citizen of Pakistan. He arrived on Christmas Island as an irregular maritime arrival in December 2009. The applicant was granted a Protection (subclass 866) visa on 5 February 2010. He has resided continuously in Australia since that time. On 11 December 2014, the applicant applied for citizenship. The application was refused by a delegate of the Minister on 29 August 2017 on the basis that the delegate was not satisfied as to the applicant’s identity as required by s 24(3) of the Australian Citizenship Act 2007 (Cth) (Act). The delegate was satisfied that the applicant met the criteria in s 21(2)(a) to (g) of the Act, but did not make findings in relation to the requirement in s 21(2)(h) that the applicant be of good character.

3    On review of the delegate’s decision, the Tribunal was satisfied as to the applicant’s identity as required by s 24(3) of the Act, but affirmed the decision refusing the applicant citizenship on the ground that the applicant was not a person of good character as at the time of the Tribunal’s decision as required by s 21(2)(h) of the Act.

4    By his notice of appeal dated 20 December 2018, the applicant contends that:

(a)    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”; and

(b)    the Tribunal erred in concluding that its finding of fact that the applicant exhibited “a lack of diligence and civic responsibility in his dealings with governmental bodies” was relevant to the question whether the applicant is a person of good character under s 21(2)(h) of the Act.

5    The applicant also sought from the Court a finding of fact that the applicant is of good character for the purposes of s 21(2)(h) of the Act.

6    The applicant seeks orders that that part of the Tribunal’s decision affirming the refusal of citizenship on the basis that the applicant was not a person of good character under s 21(2)(h) of the Act be set aside and the matter remitted to the Tribunal for determination according to law.

7    For the reasons that follow, I find that the Tribunal erred in applying a test of “comfortable satisfaction” in determining whether the applicant was a person of good character, and in taking into account its finding that the applicant exhibited “a lack of diligence and civic responsibility in his dealings with governmental bodies”. The Tribunal’s decision should be set aside and the matter remitted to the Tribunal for determination according to law. I refuse the applicant’s request to make a finding of fact that the applicant is of good character for the purposes of s 21(2)(h) of the Act.

Background

8    The applicant was born in Parachinar, in a Federally Administered Tribal Area of Pakistan, on 29 January 1987. He is of Hazara ethnicity and Shi’a Muslim religion. The applicant departed Pakistan in April 2009 and eventually boarded a boat in Indonesia bound for Australia, assisted by people smugglers. This boat was intercepted by Australian authorities on 10 December 2009. The applicant did not have any identity documents with him at the time. The applicant was then taken to the Christmas Island Immigration Detention Centre and, on 29 December 2009, he was interviewed by the Department of Immigration and Citizenship (Department). In that interview, the applicant said that he was born in Pakistan and that he feared the Taliban there.

9    The applicant gave the following evidence about his conversation with a guard at the Detention Centre after his initial interview:

When I finished my interview, I was taken back to my accommodation in the way I described above. During this process, the guard who was escorting me spoke to me and we engaged in casual conversation. I can't remember his name, but he seemed friendly, and he asked me some questions about who I was and why I came to Australia. I told him what I said in my first interview, namely, that I was born in Pakistan. The guard then told me not to say that I was from Pakistan, because it was a 'super' country which was not fighting other countries, and that if I said I was from Pakistan, I would get deported. I said to him that the Taliban operated in Pakistan. He said that it did not matter, and that people from Pakistan would be deported.

I asked him what I should do. He told me, using the words as best as I can recall: 'just say you’re from Afghanistan, they will give you a permanent visa and then you will get out'.

The guard wore a Serco uniform. He was large well-built Caucasian man, who looked around about 50 years old.

Because I was fearing for my life, the next time I was interviewed, I did as the guard suggested, and said that I was born in Afghanistan. This is reflected in the documents filed in this case about the interview of 20 January 2010 (although it incorrectly states that it happened on 20 January 2009). I still said that I had fled Pakistan, because I was fearing for my life.

It was about 10 years ago when all this happened, but I remember what the guard said to me, distinctly. I was in detention for about a year and there was very little to do. The interviews I had stood out amongst the boredom. I also spent a lot of time thinking about this after I eventually got my visa, and I remember this man's advice because it meant I did not get deported, and so I think he saved my life.

10    In a second interview held on 20 January 2010 for the purpose of conducting a Refugee Status Assessment, the applicant made the following claims, which were accepted by the Department: the applicant was born in Afghanistan but travelled to Pakistan with his parents when he was a baby; in 2007, the applicant was captured and tortured by the Taliban before eventually escaping his captors; in approximately 2008 the Taliban captured, tortured and killed the applicant’s cousin and several of his friends who were travelling with a Pakistani government convoy; the applicant fled Pakistan because of his fear of persecution by the Taliban by reason of his Hazara ethnicity and Shi’a Muslim religion; the applicant feared he would be killed by the Taliban if he were to return to Pakistan.

11    It is common ground that the applicant lied when he said he was born in Afghanistan. As discussed further below, that lie was perpetuated for many years and repeated in statutory declarations sworn by the applicant and was a material reason for the Tribunal Member’s conclusion that he was not satisfied that the applicant was of good character.

12    The applicant was found to be a refugee under Article 1A of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol and was granted a Protection visa on 5 February 2010. This was on the basis of the applicant having a well-founded fear of persecution in both Afghanistan and Pakistan. The Tribunal found that the lie about his country of birth did not affect the grant of a Protection visa.

13    Since being granted a Protection visa, the applicant has resided in the Shepparton region in Victoria. He worked for around 18 months packing fruit boxes at SPC Ardmona. He then ran his own cleaning business for several months. He commenced work in his current role as a Community Service Case Manager for Kildonan Uniting Centre in Shepparton on 1 August 2012. In his current role he works with newly arrived migrants, assisting them with accommodation and other necessities. He has resided exclusively in Australia since his arrival in 2010.

14    On 11 December 2014, the applicant applied for Australian citizenship. That application was refused by a delegate of the Minister on 29 August 2017 on the basis that the delegate was not satisfied as to the applicant’s identity as required by s 24(3) of the Act. The applicant sought a review of the delegate’s decision by the AAT.

LEGISLATIVE PROVISIONS

15    Section 20 of the Act provides that

A person becomes an Australian citizen under this Subdivision if:

(a)     the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and

(b)     if the person is required to make a pledge of commitment to become an Australian citizen—the person makes that pledge.

16    Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.

17    Section 24(1) of the Act provides that, if a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Section 24(1A) provides that the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsections 21(2), (3), (4), (5), (6), (7) or (8). Those subsections deal with eligibility. Subsection 21(2) sets out the general eligibility criteria. It provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person:

(a)    is aged 18 or over at the time the person made the application; and

(b)    is a permanent resident:

(i)    at the time the person made the application; and

(ii)    at the time of the Minister's decision on the application; and

(c)    satisfies the general residence requirement (s 22) the special residence requirement (s 22A or 22B), or satisfies the defence service requirement (s 23), at the time the person made the application; and

(d)    understands the nature of an application under subsection (1); and

(e)    possesses a basic knowledge of the English language; and

(f)    has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

(g)    is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

(h)    is of good character at the time of the Minister's decision on the application.

18    The Act further provides in s 24(3) that the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied as to the identity of the person.

Tribunal’s Reasons

19    The Member identified the following two issues for determination in his review of the delegate’s decision (at [7]):

(a)    whether the Tribunal was satisfied as to the identity of the applicant as required by s 24(3) of the Act; and

(b)    whether the Tribunal was satisfied that the applicant was of good character at the time of its decision, as required by s 21(2)(h) of the Act.

20    The question of identity is not directly relevant to the issues on this appeal. As noted above, the Member was satisfied as to the identity of the applicant, contrary to the conclusion of the delegate. However, it is necessary to refer to some aspects of the Member’s reasons given in connection with the decision about identity because the Member discusses the legal standard of satisfaction to be met by the decision-maker in connection with a decision under the Act.

21    The applicant argued that the Minister was acting inconsistently on the issue of identity. The Minister had previously considered whether to revoke the applicant’s Protection visa under s 116 of the Migration Act 1958 (Cth) on the ground that the Minister was not satisfied of the applicant’s identity, but decided not to do so. Despite that, the Minister (by his delegate) had decided not to grant citizenship under the Act for that reason. In justifying the different decisions that had been made under the two Acts, the Minister argued that a higher level of satisfaction was required under s 24(3) of the Act in comparison to s 116 of the Migration Act. This was said to be because a certificate of Australian citizenship is a legal document of “extraordinary significance”. The Minister further argued that, in the context of a decision under s 24 of the Act, the Tribunal may have regard to the principle articulated in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw), namely that the nature or seriousness of an issue affects the process by which the decision-maker obtains reasonable satisfaction.

22    The Member concluded (at [19]-[21]) that the Briginshaw principle, being a rule of evidence, had no application to proceedings before the Tribunal because it was not bound by the rules of evidence: s 33(1)(c) of the AAT Act. In that regard, the Member followed an earlier decision of the Tribunal in CDNB and WLVM v Minister for Immigration and Border Protection [2018] AATA 757 at [5]-[6]. The Member rejected the Minister’s submission that a higher level of satisfaction is required for the purposes of s 24 of the Act than that which is applicable under s 116 of the Migration Act. The Member observed that, in both cases, the relevant level of satisfaction to be met is “reasonable satisfaction”.

23    As noted, the foregoing conclusions of the Member were made in connection with the Tribunal’s consideration of the question of identity. The Member did not refer to those matters in addressing the question of good character. There is no reason to believe that the Member would have drawn any distinction between the application of those principles to the question of identity and the question of good character. All that can be said is that the Member did not expressly refer to those principles, particularly the test of “reasonable satisfaction”, when considering the question of good character.

24    Despite expressly rejecting the application of the Briginshaw principle to the test of satisfaction under s 24 of the Act, on a number of occasions the Member stated that he was or was not “comfortably satisfied” of particular facts or matters in connection with the issue of identity and the issue of good character (at [36], [57], [98], [121]). As discussed further below, the expression “comfortably satisfied” was used by Rich J in Briginshaw (at 350) when describing the onus that has become known as the Briginshaw principle. A primary issue that arises on this appeal is whether the Member applied an incorrect legal standard when reaching his decision under s 21(2)(h) of the Act.

25    In relation to the issue of character, the Member summarised the following aspects of the evidence advanced by the applicant (at [100]-[103]):

(a)    The applicant adduced a National Criminal History Check certificate which stated that he had no disclosable court outcomes recorded.

(b)    The applicant has been in regular employment since his arrival in Australia and was currently working as a Community Services Case Manager with Kildonan Uniting Centre in Shepparton where he had been employed since August 2012. The applicant had participated in various training programs.

(c)    The applicant provided a number of written testimonials from members of the Shepparton community, particularly Afghanis, confirming the positive contribution he had made to the community. This was further evidenced by certificates attesting to his involvement in a range of community service activities. He also gave evidence of making regular donations to charities including Guide Dogs, World Vision and Cisarau (a charity which assists refugee children in Indonesia). The applicant’s application was supported by a co-worker, Bill Boyer, who travelled to Melbourne to give evidence in person. He attested to the applicant’s good character and gave examples of his support for individual members of the community and in particular himself when he was suffering from a serious illness. Mr Boyer stated in a statutory declaration tendered in the proceedings that the applicant was held in high regard in the local community and was often involved in activities that assist in cultural awareness and bridge building in the community.

26    The Minister did not contest the evidence led by the applicant regarding his involvement in the local community. In relation to the applicant’s evidence, the Member concluded that (at [105]):

I am satisfied on the basis of this evidence that the Applicant has, over a prolonged period, conducted himself as one would expect of a good citizen. He has supported himself in gainful employment, avoided any involvement in unlawful conduct and given generously of his time and money to support others in a variety of ways. He has clearly earned the respect of the community in which he lives.

27    In finding that the applicant was not of good character, the Member gave weight to the following categories of conduct which the Minister argued reflected adversely on the applicant’s character:

(a)    the applicant’s failure to produce documents promptly in order to establish his identity;

(b)    the applicant’s repeated oral and written statements that he was born in Afghanistan, which the applicant acknowledged were untrue; and

(c)    other incorrect or incomplete statements made by the applicant in statutory declarations and in written forms which had been submitted to Australian authorities.

28    In respect of category (a) above, the Member concluded that (at [67]-[68]):

The Applicant has clearly not assisted his case by the piecemeal and tardy way in which he has produced documents to support his application. The Applicant’s tardiness is understandably frustrating for the Department but it has acted against the interests of the Applicant by delaying the decision on his application. I do not interpret his conduct as an attempt to hide information or avoid disclosure but, even allowing for his inexperience in dealing with government, his language limitations and the challenges of dealing with a new culture. It (sic) does indicate a lack of diligence and civic responsibility in his dealings with governmental bodies.

I do not otherwise draw any negative conclusions about his character from his failure to promptly produce documents to establish his identity.

29    Thus, the only negative conclusion drawn by the Member in respect of the conduct in category (a) was that the applicant had shown a lack of diligence and civic responsibility in his dealings with government bodies.

30    In respect of category (b) above, the Member found that, in a declaration made to the Department on 17 January 2010, the applicant falsely stated that he was born in Afghanistan, that his father was an Afghani citizen and that he had dual Afghani and Pakistani citizenship (at [70]-[71]). That false statement was repeated on the following occasions:

(a)    The applicant made a declaration in his application for Australian citizenship dated 4 December 2014 which falsely stated that he was born in Afghanistan (at [74]).

(b)    In a statutory declaration sworn on 30 January 2015 in which the applicant explained why he could not produce a birth certificate for the purpose of a citizenship test, he falsely stated that he was born in Afghanistan (at [75]).

(c)    The applicant stated to Vic Roads that he was an Afghani citizen when he applied for his Victorian driver’s licence (at [76]).

(d)    In a consent form completed as part of a national police check, the applicant falsely stated that he was born in Afghanistan (at [77]).

(e)    In a Form 80 completed by the applicant, on 3 October 2016, he falsely declared that he was born in Afghanistan, that his father was born in Afghanistan and was a dual national of Afghanistan and Pakistan and that his sister, Sidiqa, was born in Afghanistan (at [78]).

31    The Member found (at [80]-[86]) that the applicant deliberately lied to immigration officials in December 2010 with the belief that it would increase his chances of being granted a Protection visa. Subsequent false statements were made to maintain that initial lie. The Member accepted the Minister’s submission that it is a serious matter to make false statements to a governmental agency, especially under oath and observed that honesty is a key element to a person’s character. However, the Member also noted certain mitigating circumstances relevant to the assessment of the applicant’s character. The applicant’s false statement about his place of birth was first made in circumstances where he held a genuine fear for his life. The Minister acknowledged that the applicant would face a risk of serious harm if he were sent back to Pakistan. The Member noted that, in assessing the applicant’s character, one cannot disregard the desperate situation he faced at the time he made the initial statement. The false statements about his place of birth did not serve to create a risk that did not otherwise exist. The applicant’s Protection visa was granted on the basis of the risks he faced as a Hazara and Shi’a Muslim in Parachinar, Pakistan. Whether he was born in Afghanistan did not materially affect the assessment of the risk.

32    Overall, in assessing the applicant’s character, the Member gave significant weight to his preparedness to dishonestly provide false information to immigration officials in order to secure a Protection visa and to perpetuate that dishonesty in subsequent statements under oath and over a prolonged period (at [86]).

33    In respect of category (c) above, the Member referred to a number of documents under two headings, involving some duplication and some inconsistency in the findings. Under the heading “False Statement Regarding Process”, the Member stated (at [79]) that the Minister had correctly referred to several instances where the applicant had signed a statutory declaration where his signature was to indicate that certain things had been done when in fact they had not been done. In that context, the Member referred to four documents (at footnote 43):

(a)    The first was a declaration on a Protection visa application form lodged by the applicant’s mother on 4 September 2014 in which he declared that he had faithfully interpreted all the contents of the application form to her. He admitted that he had not done so and had signed the declaration without reading it when told to do so by the lawyer assisting his mother.

(b)    The second was his citizenship application form dated 4 December 2014, and the incorrect statement in this document was his place of birth.

(c)    The third was a consent form completed as part of a national police check, in which the applicant did not disclose that he was also known by the names ‘Sharmi’ and ‘Alex’.

(d)    The fourth was in the Form 80 completed by the applicant on 3 October 2016, in which he incorrectly stated that his brothers Iftekhar and Imtaiaz were currently residing in Pakistan when they were both in fact in Australia. He also failed to list any family members who were in Australia under the section of the form which requested ‘personal contacts in Australia’.

34    In that context, the Member concluded (at [79]-[80]):

The applicant acknowledged the falsity on each occasion but offered the explanation that as a matter of ‘habit’ he neglects to read documents before signing them and that he did not deliberately make a false statement.

I accept the Applicant’s excuse in this regard but I do not condone it. Making a false or misleading statement in a statutory declaration is a serious matter and carries criminal penalties. In assessing his character, I find that this conduct goes to the Applicant’s honesty and further indicates a careless disregard for his civic responsibilities. It is consistent with his irresponsibility in other aspects of his dealings with governmental bodies, including his tardiness in providing documents to support his application for citizenship. The fact that the Applicant committed repeated breaches adds to the seriousness of his conduct and tells against him being of good character.

35    Under the heading “Substantive False Statements”, the Member referred to the following subset of the same documents (at [87]):

(a)    the applicant’s failure to disclose the names ‘Sharmi’ and ‘Alex’ on the consent forms he completed as part of the national police check;

(b)    the incorrect statement he made in the Form 80 in October 2016 that his brothers, Iftikhar and Imtaiaz, were then residing in Pakistan when in fact they were in Australia; and

(c)    his failure to list his family members as ‘personal contacts in Australia’ on the Form 80.

36    In that context, the Member concluded (at [88]-[90]):

I accept the falsity of these statements. However, I do not regard them as seriously as the principal falsity regarding his place of birth.

First, the Applicant offered a plausible explanation for each of the statements. I accept the Applicant’s explanation that he did not disclose his names ‘Sharmi’ and ‘Alex’ on the consent forms as they were nicknames given to him by some associates and he did not think he needed to include them. The Applicant said that he gave incorrect information when completing the Form 80 because he was confused over the meaning of the terms ‘current residence’ and ‘personal contacts in Australia’ as used on the form. I am prepared to give the Applicant the benefit of the doubt regarding his understanding of the terms ‘current resident’ and ‘personal contacts in Australia’ as I am not satisfied that the Applicant had anything to gain by deliberately including misinformation on the Form 80.

Secondly, unlike the principal falsity, it is not apparent that the Applicant made the statements with any intention to profit from them. It is one thing to make a false statement, but quite another to do so deliberately to derive a benefit to which one is otherwise not entitled. I do not find that these matters are evidence of a deliberate attempt to mislead the Department.

Accordingly, when assessing the Applicant’s character I give little weight to the false statements set out at [87] above, even though they were sworn in the form of a statutory declaration.

37    There are difficulties in reconciling the findings made by the Member about the applicant’s conduct with respect to the category (c) documents. Under the heading “Substantive False Statements”, the Member referred to 2 of the 4 documents and appears to have accepted the applicant’s explanation for the statements, which was based on the applicant’s misunderstanding as to the questions being asked. The Member concluded that he would give little weight to the alleged false statements. However, given that the Member appeared to accept the applicant’s explanation of the statements, it is not clear why the Member gave any weight to the statements as bearing on the question of good character.

38    Under the heading “False Statements Regarding Process”, the Member found that the applicant offered the explanation that as a matter of ‘habit’ he neglects to read documents before signing them and that he did not deliberately make a false statement. However, that explanation is only applicable to the first of the four documents (the declaration on the Protection visa application form lodged by his mother on 4 September 2014). In respect of the second document (his citizenship application form dated 4 December 2014), the false statement concerning his place of birth was deliberate (and considered separately by the Tribunal). In respect of the third and fourth documents (the consent forms he completed as part of the national police check and the Form 80), the Member accepted the applicant’s explanation of the statements which was based on the applicant’s misunderstanding as to the questions being asked. Further, the Member appeared to accept the applicant’s evidence that he did not deliberately make a false statement and yet found that the conduct reflected on the applicant’s honesty (at [80]). In the absence of deliberateness (an awareness of the falsity of a statement), it is difficult to understand how making the false statement can reflect on the applicant’s honesty.

39    In reaching his conclusion on the applicant’s character, the Member summarised his findings as follows (at [113]-[120]):

The Applicant has provided extensive evidence of his conduct as a member of the Australian community over the last eight years. There is no evidence of any criminal or anti-social conduct on the Applicant’s behalf nor is there anything to suggest that he has associated with other persons who have engaged in such behaviour. The Applicant has demonstrated financial responsibility since his arrival in Australia. He has been in continual employment and has recently purchased a house. There is no basis to suspect his involvement in any of the illegal or anti-social behaviours highlighted in the Citizenship Policy. The evidence indicates strongly that the Applicant has been a positive contributor to his community through his involvement in community activities and by his own efforts in supporting people in need.

On the other hand, the Applicant’s conduct in dealing with the Department and other bodies is not consistent with a person of good character. The Applicant lied to immigration officials in 2009 by saying that he was born in Afghanistan in a deliberate attempt to obtain a protection visa. The Applicant maintained the lie regarding his place of birth in sworn statements made over a prolonged period and only owned up to his dishonesty at the eleventh hour. Coupled with the continuation of the lie about his place of birth, the Applicant’s dealings with the Department and other government bodies has been characterised by a lack of diligence and candour. He has repeatedly sworn statutory declarations without reading them properly and without regard for what he was declaring. He has been tardy in providing documents to support his citizenship application. This continuing conduct bears on his character at the time of this decision.

…

The Applicant has limited English language skills and for most of the time during his dealings with immigration officials he had limited access to legal support. The Applicant’s interaction with immigration officials may have been conditioned by his experiences with officialdom in Pakistan. Professor Maley gave evidence that it is rare for members of minorities (such as Hazaras) in Pakistan to see the State as a protective agency and many fear persecution in dealing with agencies, especially the police and the military. The Applicant gave evidence that his cousin was handed over to the Taliban by the army.

The Applicant’s false statement about his place of birth was first made in circumstances where he was desperate and in fear of being returned to Pakistan where he faced significant danger. He had fled from Pakistan in genuine fear for his life, having been exposed to persecution and direct threats of violence by the Taliban. He had risked his life to travel to Australia by boat. The Respondent has accepted the risk of serious harm should the Applicant return to his home country. This risk was confirmed by the evidence of Professor Maley. In those circumstances, a person is entitled to some leeway in the assessment of their enduring moral qualities.

I also accept that some of the false statements in statutory declarations were made out of carelessness rather than deliberately to obtain an advantage.

These factors go some way to explaining the Applicant’s conduct but they do not absolve him completely. As Senior Member McCabe observed in Taradel and Minister for Immigration, Multicultural and Indigenous Affairs ... dishonesty in dealings with the department is a very serious matter. The integrity of the immigration system depends on individuals telling the truth about their personal circumstances and history.

40    The Member stated his conclusion as follows (at [121]):

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. Accordingly, having reviewed the evidence and given careful consideration to the requirements of the AC Act and Citizenship Policy, I am not satisfied that the Applicant is now of good character. And for that reason, I affirm the decision under review.

Jurisdiction of the Court

41    Section 44(1) of the AAT Act provides that a party to a proceeding before the Tribunal may appeal to this Court, in relation to a question of law, from any decision of the Tribunal in that proceeding. The limitation of the Court’s jurisdiction to the resolution of questions of law imposes a significant constraint on the role of the Court in reviewing decisions of the Tribunal: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286. A wrong finding of fact is not sufficient to demonstrate an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77-78.

42    The questions raised in this appeal concern the decision under s 21(2)(h) of the Act that the Tribunal was not satisfied that the applicant was of good character. A decision based on the decision-maker’s satisfaction as to some matter or thing is reviewable by the Courts if the decision maker does not address the statutory question, or the conclusion is affected by some error of law, or if the decision-maker takes some extraneous reason into consideration or excludes from consideration a relevant matter: Avon Downs Pty Ltd v Commissioner of Taxation (1949) 78 CLR 353 at 360 per Dixon J; Buck v Bavone (1976) 135 CLR 110 at 118-119 per Gibbs J.

43    Each of the questions raised in this appeal involves a question of law. The first question is whether the Tribunal erred in applying an incorrect legal standard to the eligibility criterion in s 21(2)(h) of the Act. Incorrectly interpreting or applying the law to facts as found is an error of law: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]-[84] per McHugh, Gummow and Hayne JJ. While the eligibility criterion in s 21(2)(h) requires an evaluative judgment which largely raises an issue of fact, the legal standard that is applied to the evaluation may involve a question of law: Commissioner of Taxation v Roberts (1992) 37 FCR 246 at 251-2. The second question is whether the Tribunal took into account an irrelevant consideration in its assessment of the eligibility criterion in s 21(2)(h) of the Act. Again, this is a question of law: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42 per Mason J.

44    It is well-recognised that the reasons of an administrative decision-maker are meant to inform and are not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The Court must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6 per Brennan J.

Section 21(2)(h)

45    The appeal concerns s 21(2)(h) of the Act which stipulates 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. Appeal ground 1 concerns the meaning of the term “satisfied” and appeal ground 2 concerns the meaning of the term “good character”. As the section of the Act must be construed as a whole, it is desirable to make some preliminary observations about the section.

46    As observed by the Tribunal (at [107]), with respect correctly, the term “good character” is not defined in the Act, which indicates that Parliament intended the term to be used in a broad way and allows the decision-maker to consider a range of events and conduct connected with the applicant: see Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128 at [60] per Perram, Yates and Mortimer JJ.

47    In Irving v Minister of State for Immigration, Local Government & Ethnic Affairs (1996) 68 FCR 422, the Full Court considered the meaning of the expression “good character” in a provision of the Migration Act which gave the Minister power to refuse or cancel a visa if the Minister was satisfied that the relevant person was not of good character. Davies J observed (at 424-5):

The question whether a person is or is not of "good character" is primarily an issue of fact. It is not the function of this court to form its own view of such a fact. Provided that the decision-maker has approached the issue correctly, has acted in accordance with the principles of procedural fairness, has taken into account all material factors, has disregarded immaterial factors and has reached a decision which was open on the material, which is to say that the decision made was not one which no reasonable decision-maker would have made, then this court will not grant an order of review. The Administrative Decisions (Judicial Review) Act 1977 (Cth) confers on the court not the function of reviewing decisions on their merits, but the function of correcting those errors which may loosely be described as errors of law, that is to say errors which offend the legal principles laid down for administrative decision-making.

It should also be observed that the term "good character" is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual's reputation or repute: see Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person's inherent qualities. I do not suggest that, in the context, "good character" refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will tum his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.

…

48    His Honour also observed (at 427-8):

The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of "good character" requires the exercise of a value judgment. There are no precise parameters which distinguish "good character" from "bad character". Although, in general, "good character" can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision.

49    Similarly, Lee J observed (at 431):

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 to 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 whilst the latter is a review 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.

… Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weakness or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.

50    In Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321; [1999] FCA 1277, the Full Court again considered the meaning of the expression “good character” in s 501 of the Migration Act which gave the Minister power to refuse a visa if the Minister was satisfied that the relevant person was not of good character. The Court observed (at [8]) that the meaning to be given to the expression depended on the statutory purpose:

Section 501 does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of “good character” in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is “not of good character” within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.

51    The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2)(h) of the Act. First, it refers 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. The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed and precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions (cf O’Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 348 per Mason CJ and 380-382 per Toohey and Gaudron JJ. Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.

52    The 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; and

(b)    by sharing their democratic beliefs; and

(c)    by respecting their rights and liberties; and

(d)    by upholding and obeying the laws of Australia.

53    The ideals of diversity, democracy and liberty, reflected in the Preamble to the Act, indicate that the expression “good character” is not to be informed or assessed by individual religious, political or social beliefs, but by moral qualities that are regarded as a necessary concomitant of Australian citizenship. Matters that bear upon a person’s good character for the purposes of the Act are matters relevant to the obligations of citizenship as expressly or impliedly reflected in the Act, including its Preamble. The Tribunal referred with approval to the guidance contained in Chapter 11 of the Citizenship Policy 2016, which included, as consistent with having a good character, such matters as:

(a)    respecting and abiding by the law in Australia and other countries;

(b)    being honest and financially responsible;

(c)    being truthful and not practising deception or fraud in dealings with the Australian Government, or other governments and organisations;

(d)    not being violent, involved in drugs or unlawful sexual activity, and not causing harm to others through their conduct;

(e)    not being associated with others who are involved in anti-social or criminal behaviour;

(f)    not having evaded immigration control or assisted others to do so, or been involved in the illegal movement of people;

(g)    not having committed, been involved with or associated with war crimes, crimes against humanity and/or genocide;

(h)    not being the subject of any extradition order or other international arrest warrant; and

(i)    not being involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia.

54    Section 21(2)(h) requires the Minister to form a judgment as to whether he or she is satisfied that the applicant for citizenship is of good character. The word “satisfied” in that context is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities. That is for at least two reasons. First, the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite: McDonald v Director General of Social Security (1984) 1 FCR 354 at 356-7 per Woodward J, 365-6 per Northrop J and 369 per Jenkinson J; Sun v Minister for Immigration (2016) 243 FCR 220 at [6] per Logan J and at [76]-[79] and [95] per Flick and Rangiah JJ. Second, the matter of which the Minister must be satisfied, 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. In an analogous context (whether the Minister was satisfied that a person was a refugee), the plurality in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Brennan CJ, Toohey, McHugh and Gummow JJ) stated (at 282):

Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature. A whole range of possible approaches to decision-making in the particular circumstances of the case may correct in the sense that be their adoption by a delegate would not be an error of law. The term "balance of probabilities" played a major part in those submissions, presumably as a result of the Full Court's decision. As with the term "evidence" as used to describe the material before the delegates, it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision-making is very different and the use of such terms provides little assistance.

55    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 of s 21(2)(h) of the Act, 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. Further, where a power is conferred by statute, Parliament is taken to intend that that power will be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26] and [29] per French CJ, at [63] per Hayne, Kiefel and Bell JJ, at [88] per Gageler J. However, the requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which the Court disagrees: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [30] per French CJ.

Appeal ground 1 – did the Tribunal apply the wrong legal standard?

56    By appeal ground 1, the applicant contends that 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”. The question raised by the appeal ground is whether the member applied the wrong legal standard in making a determination about the “good character” eligibility criterion. Counsel for the applicant submitted that the Member’s use of the phrase “comfortably satisfied” was deliberate and it can be inferred that the Member applied a higher legal standard than was required by the statute. Counsel for the Minister submitted that the Member used the terms “satisfied” and “comfortably satisfied” in an interchangeable manner such that it can be inferred that the Member equated the two expressions.

57    As noted earlier, the Member rejected the Minister’s submission that a higher level of satisfaction of the applicant’s identity was required under s 24(3) of the Act in comparison to s 116 of the Migration Act, and also rejected the submission that the Tribunal may have regard to the principle articulated in Briginshaw. The Member was correct to do so. Evidentiary burdens of proof are inapposite to the administrative decision to be made by the Tribunal on review. The Member also concluded that the relevant level of satisfaction to be met was “reasonable satisfaction”. By that expression, the Member can be taken to mean that, in determining whether the Tribunal is satisfied that the applicant is a person of good character, it must act reasonably in the legal sense. Again, that statement of the applicable legal standard is correct.

58    Despite reaching those conclusions, on a number of occasions the Member stated that he was or was not “comfortably satisfied” of particular facts or matters (at [36], [57], [98], [121]). Most critically, when stating his conclusion at [121], the Member said:

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. (emphasis added)

59    As can be seen, the Member qualified the verb “satisfied” with the adverb “comfortably”. Counsel for the applicant argued that, in doing so, the Member imposed a higher legal standard than required by the statute. Immediately after those statements, though, the Member reverted to the statutory language and said:

Accordingly, having reviewed the evidence and given careful consideration to the requirements of the AC Act and Citizenship Policy, I am not satisfied that the Applicant is now of good character. And for that reason, I affirm the decision under review. (emphasis added)

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. Indeed, the origin of the phrase “comfortably satisfied” can be traced to the judgment of Rich J in Briginshaw. In that case, his Honour said (at 350):

In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.

61    The language of “comfortable satisfaction” was adopted by the High Court in Locke v Locke (1956) 95 CLR 165. In their joint judgment, Dixon CJ, Williams and Fullagar JJ stated (at 168) that in cases concerning allegations of serious misconduct such as adultery, a Court should consider whether, on balance, there is sufficient evidence to prove the alleged fact(s) to the comfortable satisfaction of the tribunal of fact. The expression “comfortable satisfaction”, derived from Rich J’s reasons in Briginshaw, has sometimes been used as a shorthand for the Briginshaw principle: see for example Australian Municipal, Administrative, Clerical and Services Union v Ansett Australia Ltd (2000) 175 ALR 173 at [80] per Merkel J and Whitlam v ASIC (2003) 57 NSWLR 559 at 592 [119] per Hodgson, Ipp and Tobias JJA.

62    The Briginshaw principle does not alter the standard of proof applicable in civil cases; it remains the balance of probabilities: Rejfek v McElroy (1965) 112 CLR 517 at 521; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; 67 ALJR 170. However, as stated by the High Court in Rejfek (at 521): “…the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved” (emphasis added).

63    On occasions, the expression “comfortable satisfaction” has been erroneously equated, in a jury direction, with the criminal standard of proof beyond reasonable doubt: Thomas v R (1960) 102 CLR 584 at 587-588 per McTiernan J; Green v R (1971) 126 CLR 28 at 32-33 per Barwick CJ, McTiernan and Owen JJ. An ordinary person would not regard “comfortably satisfied” as meaning beyond reasonable doubt.

64    As noted above, the Member used the phrase “comfortably satisfied” on four occasions. The context in which the Member used the phrase differed. At [36], [57] and [98], the Member used the term “comfortably satisfied” in a positive sense:

(a)    At [36], in connection with the issue of identity, the Member stated that he was “comfortably satisfied that the Applicant is a citizen of Pakistan and a member of the family detailed in the NADRA family certificate”.

(b)    At [57], again in connection with the issue of identity, the Member stated that “All of the other evidence leads me to be comfortably satisfied as to the Applicant’s identity”.

(c)    At [98], in connection with the issue of good character, the Member stated the following conclusion as to a finding of fact: “I am comfortably satisfied that the Applicant had spoken to his brother and told him about his false claim that he was born in Afghanistan”.

65    The inference that arises from each of those uses of the phrase is that the Member was indicating that he was “more than satisfied” or “well and truly satisfied” of the relevant fact or matter. The context suggests a higher degree of satisfaction than mere satisfaction. That inference is supported by the Member’s alternative use of the statutory language “satisfied” in making findings at [48], [60], [82], [97] and [105]. There was no legal error associated with the Member’s use of the phrase “comfortably satisfied” in a positive sense. The higher level of satisfaction encompassed the lower level required by the statute.

66    In stating his ultimate conclusion on the question of good character at [121], the Member used the expression “comfortably satisfied” in a negative sense. The Member concluded that, on balance, he was not comfortably satisfied that the applicant’s dishonesty and lack of candour in his dealings with government agencies was outweighed by the positive aspects of the applicant’s character. While the Member had correctly rejected the application of the Briginshaw principle to the statutory task he was undertaking, and correctly stated that the test to be applied was one of reasonable satisfaction, in my view in the course of his reasons the Member adopted an approach to the statutory task that was erroneous. The Member incorrectly considered whether he was comfortably satisfied, in the sense of being well and truly satisfied, that the positive aspects of the applicant’s character outweighed the negative aspects. In doing so, the Member adopted a degree of satisfaction that was not required by the statute. That conclusion is supported by the following matters.

67    First, this is not a case in which the Member started and ended with the correct legal test, and adopted potentially erroneous phraseology in between (cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271). While the Member started with the correct legal test, the member adopted the test of comfortable satisfaction on four occasions, including in reaching his conclusion on s 21(2)(h) at [121]. On each occasion, the adoption of the test of comfortable satisfaction appears to be deliberate, to emphasise the degree of satisfaction reached by the Member. The use of the phrase is such as to indicate that the Member asked himself the wrong question: cf CLS15 v Federal Circuit Court of Australia (2017) 72 AAR 502 at [56] per Charlesworth J.

68    Counsel for the Minister submitted that, in the penultimate sentence of [121], the Member expressly concluded that he was not “satisfied that the Applicant is now of good character”, thus adopting the statutory test. I am not persuaded that the Member’s sentence at [121] in which he used the word “satisfied” indicates that the Member asked himself the correct legal question and applied the correct legal standard in making his determination under s 21(2)(h). In my view, the Member’s primary conclusion is expressed in the immediately preceding sentence in which the Member stated that he was not comfortably satisfied that the applicant’s dishonesty and lack of candour in his dealings with government agencies was outweighed by the positive aspects of the applicant’s character. The next sentence, in which the Member used the word “satisfied”, commences with the conjunctive adverb “accordingly”, indicating that that sentence follows from and is dependent upon the reasoning in the preceding sentence.

69    Second, the Tribunal’s reasons may be read conscious of the fact that the Member is legally qualified: Yum! Restaurants Australia Pty Ltd v Full Bench of Fair Work Australia (2012) 205 FCR 306 at [37] per Lander, Flick and Jagot JJ; Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 at [124] per Flick and Perry JJ. The Tribunal in the present proceeding was constituted by an experienced legal practitioner (see page 3 of the transcript of the Tribunal proceeding).

70    Third, the findings of fact made by the Member with respect to conduct that reflected positively and negatively on the applicant’s character support the conclusion that the Member applied a higher degree of satisfaction than was required by the statute. The evidence referred to by the applicant as to good character was unchallenged, and showed that the applicant was employed and working to benefit the community in which he resided. The Member found (at [105]):

I am satisfied on the basis of this evidence that the Applicant has, over a prolonged period, conducted himself as one would expect of a good citizen. He has supported himself in gainful employment, avoided any involvement in unlawful conduct and given generously of his time and money to support others in a variety of ways. He has clearly earned the respect of the community in which he lives.

and (at 113]):

The Applicant has provided extensive evidence of his conduct as a member of the Australian community over the last eight years. There is no evidence of any criminal or anti-social conduct on the Applicant’s behalf nor is there anything to suggest that he has associated with other persons who have engaged in such behaviour. The Applicant has demonstrated financial responsibility since his arrival in Australia. He has been in continual employment and has recently purchased a house. There is no basis to suspect his involvement in any of the illegal or anti-social behaviours highlighted in the Citizenship Policy. The evidence indicates strongly that the Applicant has been a positive contributor to his community through his involvement in community activities and by his own efforts in supporting people in need.

71    As noted earlier, there were some inconsistencies in the Member’s findings with respect to evidence that reflected adversely on the applicant’s character, but overall the findings were nuanced. The most serious matter taken into account by the Member was the applicant’s false statements about his place of birth (see [86]). Nevertheless, the Member found (at [118]):

The Applicant’s false statement about his place of birth was first made in circumstances where he was desperate and in fear of being returned to Pakistan where he faced significant danger. He had fled from Pakistan in genuine fear for his life, having been exposed to persecution and direct threats of violence by the Taliban. He had risked his life to travel to Australia by boat. The Respondent has accepted the risk of serious harm should the Applicant return to his home country. This risk was confirmed by the evidence of Professor Maley. In those circumstances, a person is entitled to some leeway in the assessment of their enduring moral qualities.

72    The Member’s finding correctly reflects the view that honesty and dishonesty are not moral absolutes, and the circumstance in which a lie is told has a substantial bearing upon any perceived moral deficiency. In the present case, the Member found that the applicant lied about his place of birth in circumstances where he feared for his life, a fear that was found to be justified and that entitled the applicant to protection in Australia. That lie was repeated on a number of occasions in order to maintain the original lie, and was therefore perpetuated for the same reason. The moral deficiency (if any) associated with a lie that is told by a person believing that the lie is necessary in order to save the person from abhorrent and unjustified threats to their safety is entirely different to the moral deficiency associated with a lie that is told for the purposes of personal enrichment.

73    The Member placed less weight on the second category of conduct which comprised other false statements made by the applicant as he accepted that the falsity was not intentional (at [80], [89] and [119]). In respect of the declaration forming part of the Protection visa application form lodged by the applicant’s mother on 4 September 2014, the Member accepted the applicant’s evidence that he did not deliberately make a false statement, but had failed to read the declaration that he signed. In that respect, the Member concluded that the applicant had shown a careless disregard for his civic responsibilities (at [80]). In respect of the police check and the Form 80, the Member accepted that the applicant had not understood the questions asked and placed little weight on the documents (at [91]).

74    In respect of the third category of conduct, failing promptly to produce documents to establish his identity, the Member found that it indicated a lack of diligence and civic responsibility in his dealings with governmental bodies, but did not otherwise draw any negative conclusions about the applicant’s character (at [67]).

75    The Member weighed the conduct that reflected positively and negatively on the applicant’s character, observed that the assessment was not easy, and concluded that the Member was not comfortably satisfied that the positive aspects of the applicant’s character outweighed the applicant’s dishonesty and lack of candour in his dealings with government (at [121]). Given that the finding of dishonesty wholly or principally related to the statements about the applicant’s place of birth, and that the lack of candour either related to the same conduct or the failure promptly to produce documents to establish his identity, I find it an inescapable inference that the Member applied a higher degree of satisfaction than was required by the statute. That was an error of law within s 44 of the AAT Act.

76    To be clear, the error in the Tribunal’s decision is not the Tribunal’s assessment of the relative weight to be given to conduct that reflected positively and negatively on the applicant’s character. That is a matter for the Tribunal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J. The error lies in the choice of the legal standard that the Tribunal applied to its task under s 21(2)(h). The Tribunal’s findings with respect to the conduct that reflected positively and negatively on the applicant’s character inferentially supports the conclusion that the Tribunal adopted an erroneous standard, requiring the Tribunal to be comfortably satisfied (more than satisfied) of the applicant’s good character, rather than being satisfied.

Ground 2 – irrelevant consideration

77    By ground 2, the applicant contends that the Tribunal erred in concluding that its finding of fact that the applicant exhibited “a lack of diligence and civic responsibility in his dealings with governmental bodies” was relevant to the question whether the applicant “is of good character”. Two questions arise on this ground: first, whether the Tribunal took into account, when reaching a conclusion as to the applicant’s character under s 21(2)(h), its findings about the applicant’s “lack of diligence and civic responsibility in his dealings with governmental bodies”; second, if and to the extent it did, was it in error to do so.

78    As discussed earlier, one of the categories of conduct considered by the Member in assessing whether the applicant was a person of good character was the applicant’s failure to produce documents promptly in order to establish his identity. The Member recorded the Minister’s reliance upon the following conduct of the applicant (at [65]):

(a)    the failure to produce any documents to establish identity upon arrival on Christmas Island;

(b)    the production of educational documents only in response to the first Department request made in September 2016;

(c)    the production of his parents’ identity cards in May 2017 in response to the second Department request;

(d)    the production of his identity card and NADRA certificate only after his citizenship application was refused by the delegate;

(e)    the consistent failure to declare to the Department that he held a Pakistani driver’s licence; and

(f)    the failure to produce a copy of the record of his birthdate in the family’s Koran.

79    Earlier in his reasons, on the issue of the applicant’s identity, the Member made the following findings with respect to the applicant’s production of documents (at [30] and [31]):

The Applicant’s explanation for not producing his Pakistani passport and identity card is that the originals were taken from him by people smugglers before he arrived in Australia. I accept this explanation. The Applicant stated that he did not apply for a replacement passport because he had no need for it as he had an Australian visa and in any event he had no desire to travel outside Australia. He said that he obtained a new identity card when requested by his lawyer for the purpose of his citizenship application. He said he did not produce his Pakistani driver’s licence because it was not treated as an official document in Pakistan as it is in Australia. He stated that all he needed to do to obtain his licence was pay a fee and get two village elders to sign it. He said that he discarded his Pakistani licence once he obtained his Victorian licence. He explained that he did not produce a copy of his family Koran to evidence his date of birth because it was not an official document and no-one had asked him to do so.

It is clear that the Applicant has been less than diligent in failing to provide these documents to the Department to support his application. I accept that the Applicant could have produced each of the documents if he had made the effort to do so. However, the explanation he has given in each case is plausible and, given the probative value of the documents he did produce, I am prepared to accept his explanation as cogent and acceptable.

80    Thus, the Member found that the applicant was less than diligent, but that the applicant’s explanation was cogent and acceptable. The Member also found that the applicant’s lack of diligence in this regard contributed to doubts about his identity (at [59]):

The task of deciding whether to be satisfied as to the identity of the Applicant under s 24(3) of the AC Act, both for the delegate and this Tribunal, has not been assisted by the manner in which the Applicant has presented his case. Documents have been provided on a “drip feed” basis. The Applicant has not taken all reasonable steps to verify his identity by, for example, applying promptly for the issuing of a Pakistani identity card or applying for the re-issue of his Pakistani passport, the original having been taken by people smugglers in Indonesia. The Applicant’s Pakistani driver’s licence was not provided to the Department and was later discarded once the Applicant obtained his Victorian driver’s licence. The Applicant did not produce a copy of the record of his birth date in the family’s Koran. The Applicant chose not to call his mother as a witness to confirm his birth date and to clarify other aspects of his identity. These shortcomings have no doubt contributed to the justifiable uncertainty as to the Applicant’s identity expressed by the delegate in the decision under review.

81    Nevertheless, the Member was satisfied as to the applicant’s identity (at [60]).

82    The Member returned to the issue of the applicant’s failure to provide documents promptly to the Department to establish his identity in connection with the assessment of his character. In that context, the Member repeated the applicant’s explanations for not providing certain documents (at [66]) and concluded that (at [67]):

The Applicant has clearly not assisted his case by the piecemeal and tardy way in which he has produced documents to support his application. The Applicant’s tardiness is understandably frustrating for the Department but it has acted against the interests of the Applicant by delaying the decision on his application. I do not interpret his conduct as an attempt to hide information or avoid disclosure but, even allowing for his inexperience in dealing with government, his language limitations and the challenges of dealing with a new culture. It (sic) does indicate a lack of diligence and civic responsibility in his dealings with governmental bodies. (Emphasis added)

83    The Member again referred to “tardiness” and “lack of diligence” in dealing with government bodies when summarising the conduct that reflected adversely on the applicant’s character in the following terms (at [114]):

On the other hand, the Applicant’s conduct in dealing with the Department and other bodies is not consistent with a person of good character. The Applicant lied to immigration officials in 2009 by saying that he was born in Afghanistan in a deliberate attempt to obtain a protection visa. The Applicant maintained the lie regarding his place of birth in sworn statements made over a prolonged period and only owned up to his dishonesty at the eleventh hour. Coupled with the continuation of the lie about his place of birth, the Applicant’s dealings with the Department and other government bodies has been characterised by a lack of diligence and candour. He has repeatedly sworn statutory declarations without reading them properly and without regard for what he was declaring. He has been tardy in providing documents to support his citizenship application. This continuing conduct bears on his character at the time of this decision. (Emphasis added)

84    The Member stated his final conclusion in the following terms (at [121]):

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. Accordingly, having reviewed the evidence and given careful consideration to the requirements of the AC Act and the Citizenship Policy, I am not satisfied that the Applicant is now of good character. And for that reason, I affirm the decision under review.

85    An initial question arises whether the Member relied on the applicant’s “lack of diligence” in reaching the conclusion that the Member was not satisfied as to the good character criterion in s 21(2)(h). It is not entirely clear what the Member intended to include within the expression “lack of candour” in [121]. However, on a fair reading of the Member’s reasons, I consider that the Member did take into account his finding as to the applicant’s “lack of diligence”. This conclusion follows from the fact that the Member addressed the failure to provide documents to the Department as a specific category of conduct and, at [66], made an express finding that it indicated a lack of diligence and civic responsibility in his dealings with governmental bodies. Further, the conclusion at [68] that the Member did not otherwise draw any negative conclusions about his character from his failure promptly to produce documents to establish his identity suggests that there remains a negative conclusion to be drawn (the lack of diligence and civic responsibility). The Member then expressly referred to the applicant’s lack of diligence and tardiness in dealing with the Department as conduct inconsistent with a person of good character at [114], referring to the applicant’s tardiness in providing documents to support his citizenship application as continuing conduct that bears on his character at the time of the decision. Given those findings and conclusions, I consider that the Member did rely upon his finding as to the applicant’s lack of diligence in providing documents to the Department as conduct reflecting adversely on the applicant’s character.

86    That leads to the question whether the applicant’s lack of diligence or tardiness was relevant to the statutory assessment under s 21(2)(h). Counsel for the applicant submitted that a lack of diligence or being “tardy” in providing paperwork to government bodies is not relevant to the applicant’s “enduring moral qualities”, and that that was especially so given the Member’s conclusion (at [67]) that the applicant had not attempted to hide information or avoid disclosure. Counsel for the Minister submitted that it was open on the Member’s assessment of the evidence for it to consider that the particular kind of lack of diligence or civic responsibility found in the present case did diminish a person’s character. The question that is raised by this ground of appeal is whether a person’s tardiness, or lack of responsiveness, in providing documentation to a government body, when there is no intention to hide information or to mislead or deceive, and the tardiness works against the person’s best interests, is conduct that is relevant to the assessment of the person’s character under s 21(2)(h).

87    As discussed earlier, the phrase “good character” refers to the enduring moral qualities of a person and not to their physical or mental attributes or abilities. The expression does not have a fixed and precise content and necessarily imports a discretionary value judgment informed by the subject matter, scope and purpose of the Act. The expression is concerned with moral qualities that are regarded as a necessary concomitant of Australian citizenship.

88    Consistently with Chapter 11 of the Citizenship Policy 2016, respect for the Australian Government and the laws of Australia, and respect for the institutions of government including governmental 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. Conversely, disrespect for the Australian Government, the laws of Australia and governmental departments reflects adversely on a person’s character in the statutory sense.

89    A more difficult question is whether “tardiness” in dealing with a government body, in and of itself, is relevant to the assessment of a person’s character. Tardiness can have many causes, not all of which will be relevant to the question of character in the statutory sense. In the worst case, tardiness may be caused by a desire to withhold information from a government body and thereby mislead or deceive the body. Tardiness may also be caused by disrespect for, or disregard of, a particular government body or department. If such causes were present, it would be open to conclude that such attitudes weighed adversely in the assessment of a person’s character in assessing eligibility for citizenship. Conversely, tardiness may be caused by intellectual difficulties, or language difficulties, or a lack of familiarity with or comprehension of particular governmental requirements and procedures. In such circumstances, it would be wrong to conclude that tardiness ought to carry any weight at all in the assessment of character.

90    In the present case, the Member found that the applicant’s explanations for failing to provide documents were cogent and acceptable (at [31]). The Member did not interpret the applicant’s conduct as an attempt to hide information from or avoid disclosure to the Department (at [114]). The Member also found that the applicant had limited English language skills and for most of the time during his dealings with immigration officials he had limited access to legal support (at [116]). The Member further found that the applicant’s interaction with immigration officials may have been conditioned by his experiences with officialdom in Pakistan, referring to expert evidence that it is rare for members of minorities (such as Hazaras) in Pakistan to see the State as a protective agency and many fear persecution in dealing with agencies, especially the police and the military (at [117]). Given those findings, in my view no basis was established to support a conclusion that the applicant’s lack of diligence in providing documents to the Department was relevant to the assessment of the applicant’s character in the statutory sense. The Member failed to make any finding that the lack of diligence in providing documents to the Department reflected on the applicant’s moral qualities. Rather, all of the findings reflected practical challenges faced by the applicant, including language difficulties, the absence of legal assistance and an understandable lack of familiarity with governmental processes in Australia.

91    For those reasons, in my view the Tribunal erred in law by taking into account an irrelevant consideration in its assessment of the applicant’s character for the purposes of s 21(2)(h) of the Act, being the applicant’s lack of diligence in producing documents promptly to the Department in order to establish his identity.

Finding of fact sought by the applicant

92    The applicant seeks from the Court a finding of fact, pursuant to s 44(7) of the AAT Act, that the applicant is of good character for the purposes of s 21(2)(h) of the Act. Section 44(7) of the AAT Act provides that the Court may make findings of fact if those findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law) and if it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to the matters set out in s 44(7)(b)(i) to (vii).

93    In my view, it is doubtful that the assessment of the applicant’s character that is required for the purposes of s 21(2)(h) is a finding of fact within the meaning of s 44(7) of the AAT Act. As discussed earlier, the statutory task requires an evaluative judgment and the formation of an opinion by the decision-maker. Further and in any event, it is not for the Court to undertake the evaluative exercise which the statute has left to the administrative decision-maker: Irving (1996) 68 FCR 422 at 424-425 per Davies J; Cabal v Minister for Justice (2000) 101 FCR 112 at [61] per Drummond, North and Gyles JJ; Marku v Minister for Justice (2015) 237 FCR 580 at [70]-[71]. I will not, therefore, make the finding sought by the applicant.

Relief

94    While the Court will not remit a matter to the Tribunal if to do so would be futile because there was only one decision reasonably open (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 per Mason CJ and at 384 per Toohey and Gaudron JJ; Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-6), that is not the case here. The Tribunal acknowledged that the evidence weighing in favour of and against a finding of good character under s 21(2)(h) of the Act was finely balanced (at [121]). It is possible that the Tribunal would come to a different conclusion in the absence of the legal errors that I have found were made. Accordingly, I will set aside the decision of the Tribunal and remit the case to be heard and decided again according to law.

Associate:

Dated:    7 May 2019