Provide police check certificates for the applicant for any countries other than New Zealand. > > These must be from each country outside Australia where the applicant has spent 90 days or more, since the grant date of their permanent visa for Australia. The grant date is on an applicant's grant notification, which can be a date before the applicant entered Australia. > > If the applicant was granted a permanent visa before they turned 18 years old, the 90 days are only counted after they turned 18. > > The certificates must be issued within the last 12 months and include all names and aliases by which the applicant has been known. > > We do not accept work-related certificates, certificates issued by Australia Post, or certificates issued for other purposes.

4. The Applicant was given 35 days to comply with this request.
5. On 9 November 2023, the Applicant responded by email seeking clarification. He wrote that he has been living in Australia since 2008 and has not spent more than 90 days in any other country, other than New Zealand, which he understood was exempt from this request.[11]
6. On 15 November 2023, the Department emailed the Applicant and stated that New Zealand citizens will need to provide penal clearance certificates for any other country other than New Zealand where they have resided for an accumulated period of 90 days or more since the age of 18.[12]
7. On 15 November 2023, the Applicant emailed the Department and wrote in part:[13]

So just to clarify, I lived in South Africa from birth until the age of 26. > > I then lived in New Zealand (and became a New Zealand citizen) from the age of 26 to 38. > > Since the age of 38, I've lived in Australia. > > So am I correct in saying that you do NOT need a New Zealand penal clearance, but only a penal clearance from South Africa. > > Can you please confirm this is correct? If it is correct, can you please provide a link or contact details as to who in South Africa I should contact for this penal clearance.

8. On 24 November 2023, the Department emailed the Applicant and confirmed that the Department will conduct the New Zealand Penal Clearance on the Applicant's behalf, but that the Applicant was required to provide the South Africa Police Clearance Certificate for the years spent there since turning 18.[14] The Department provided a link to assist the Applicant in obtaining the Police Clearance Certificate.
9. On 4 December 2023, the Applicant emailed the Department and stated that the webpage link indicated that a person cannot apply for a Certificate online.[15] The Applicant also noted that the original hard copy document will be collected from Pretoria in South Africa. The Applicant advised that since he left South Africa almost 30 years ago he has no family or friends in South Africa that can forward the Certificate to him. The Applicant then stated that he obtained his New Zealand citizenship more than 20 years ago and 'at that time NZ Immigration would have conducted police checks in South Africa' and queried whether checks done under that process would suffice.
10. On 5 December 2023, the Department emailed the Applicant and noted that penal clearance certificates are only valid for 12 months from the date of issue of the document by the overseas authority.[16] The Department then directed the Applicant to the departmental website for further information.
11. On 5 December 2023, the Applicant emailed the Department and advised that he has spoken to the South African Embassy who advise that they do not provide police clearances.[17] He then indicated he will arrange for the documents to be couriered to South Africa and then arrange for a courier to pick them up in South Africa and return the documents to him in Australia. The Applicant also sought an extension of time to obtain the required documents.
12. On 22 December 2023, the Applicant again emailed the Department to advise he had his fingerprints taken in Australia and has all his documents ready to post to South Africa.[18] He advised however that he encountered 'another obstacle' in that he tried to pay the required fee of 170 rand using online banking but that his bank stated that the minimum amount for an international payment to South Africa is 500 rand. He stated he was 'at a loss' as to how to proceed and sought the Department's advice.
13. On 4 January 2024, the Department emailed the Applicant and advised that the Department is unable to provide advice on how to proceed, and to keep the Department updated.[19]
14. On 4 January 2024, the Applicant emailed the Department and noted that obtaining a police clearance from South Africa is a 'logistical nightmare' and that 'surely the fact I have held New Zealand citizenship for over 20 years will satisfy the police clearance requirement'.[20] The Applicant also mentioned that he holds an airside 'ASIC' and is required to get police clearance every two years in Australia.
15. On 8 January 2024, the Department emailed the Applicant and advised that New Zealand citizen applicants who do not hold a permanent visa (that is, those who hold a Special Category (subclass 444) visa) are required to obtain overseas penal clearance certificates for any other country they have stayed in for periods totalling 90 days or more.[21] The Department noted that this applies to New Zealand citizen applicants aged 18 years and above regardless of how long the person has resided in Australia. The Department then provided information on how to obtain police checks from countries outside Australia including the contact details for the South African Police Service. The Department also noted that as the due date to provide this information has passed, the Applicant was granted a 28-day extension, however the Applicant was advised to keep the Department updated if further time was required.
16. On 8 January 2024, the Applicant emailed the Department and stated that he has all the necessary documents ready but is struggling to make the payment as his bank won't transfer the small amount.[22] He stated that he will try and get the police clearance done, but otherwise, in regard to character, he relies on his contributions to the Australian community and that he has to have a police check done every two years in order to renew his 'ASIC'.
17. On 16 May 2024, the Department wrote to the Applicant to again request the penal clearance certificate from South Africa, and the reasons for the request.[23] The request also noted that:

Note: This is now our second (and final) request for this information. Please read the instructions carefully and thoroughly. Without sufficient submission of the information outlined below, or evidence submitted which satisfies that you have made all reasonable attempts to obtain this information, your application cannot proceed.

18. The Applicant was granted a further 28-day extension to provide this information.
19. On 16 May 2024, the Applicant emailed the Department and advised that he has 'done everything possible to try and get my South African Police clearance, without success.'[24] He attached screenshots to the email which depicted a screenshot of a bank transfer payment to South African Police Service, a receipt from Australia Post dated 18 January 2024 indicating payment for a tracked parcel to South Africa, a photograph of the parcel addressed to South African Police and a screenshot from the Australia Post app stating that the parcel is 'awaiting collection' in South Africa as at 14 February. The Applicant requested that the Department please assess his application on all the evidence and email correspondence so far, as he was 'not going to waste anymore of my time and money, trying to get this clearance from South Africa.'
20. On 20 May 2024, the Department emailed the Applicant acknowledging receipt of his email and attached documents but stated that the requested overseas police clearance is required to meet the good character requirements under the Act.[25] The Department then suggested contacting Australia Post, or the South African Embassy. Further details were then provided in regard to applying for the police clearance certificate. The Department asked the Applicant to ensure the documents are provided within the required timeframe, or to seek an extension if further time is required.
21. On 20 May 2024, the Applicant emailed the Department to say that he is not going to do anything further to advance this and has 'done everything I can in good faith and spent money trying to deliver what Immigration wants.'[26] The Applicant attached a photograph of his 'ASIC' card which he stated is issued every two years and requires a police clearance.[27] The Applicant stated he will not be providing any 'further documentation or chasing documentation to support (his) application' and to 'please assess my application based on the substantial evidence and correspondence you have received from me.'[28]
22. On 23 May 2024, the Department wrote to the Applicant to request the police clearance from South Africa within 28 days and noted that this is a final request.[29] The correspondence also contained the following notice:

Request detail > > Police certificates - South Africa (FINAL REQUEST) > > Good afternoon Constantine, > > Thank you for your email. I acknowledge your attempts to obtain your South Africa PC as well as your response that you do not wish to pursue this any further. Please note that your South African PC is a required document for the formulation of our character assessments. > > I am writing to inform you that this is the final request for this document. I would advise you to comply with one of the following responses: > > ● Provide a statement that you wish to continue to pursue your South African PC > > ● Provide a statement that you do not wish to pursue your South African PC; > > ● or, take no action to reply to this request and a decision will be made on your application at the end of the request period based on the available information.

23. There was no correspondence received in response to this letter.
24. On 22 July 2024, a delegate of the Respondent refused the Applicant's application for Australian citizenship by conferral.[30] The application was refused on the basis that, in the absence of an overseas police clearance certificate, the delegate was unable to make a full and accurate assessment of character as required under s 21(2)(h) of the Act.[31] The delegate found that, at the time of the decision, the Applicant had been given a reasonable amount of time to provide an overseas police clearance certificate and any further additional information to support the Department's request.[32]
25. On 16 August 2024, the Applicant asked the Tribunal to review the reviewable decision.[33]

1. The issue to be determined by the Tribunal is whether it can be satisfied that the Applicant is of good character at the time of its decision.

1. Section 21(1) provides that a person may make an application to the Minister to become an Australian citizen.
2. Section 21(2) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that each of the eight general eligibility criteria are met. One of those general eligibility criteria is listed in s 21(2)(h) which 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. In the case of merits review, character is assessed at the time of the Tribunal's decision.
3. Section 24(1) of the Act provides that if a person makes an application under s 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
4. Section 52(1)(b) of the Act confers jurisdiction on the Tribunal to review decisions made under s 24 of the Act. Although the Applicant's application was made to the then Administrative Appeals Tribunal, the relevant transitional provisions provide that applications not decided prior to the commencement of the Administrative Review Tribunal on 14 October 2024 are to be continued and finalised by the new Tribunal.[34]

Citizenship Policy Statement and Revised Citizenship Procedural Instructions

1. The Australian Citizenship Policy Statement ('Policy') and the Revised Citizenship Procedural Instructions ('CPIs') provide policy guidance on assessing applications for conferral of Australian citizenship under the Act. Decision-makers are required to apply the requirements under the Act. Many of the requirements in the Act are expressed in objective terms and do not allow for the exercise of discretion by decision-makers.[35] To the extent that the Act allows for discretion, decision-makers should consider the Department's approved policy and procedures where relevant and appropriate.[36] This ensures that decision-making is consistent to the extent that that it is appropriate and to ensure arbitrary outcomes are avoided.[37]
2. It should be noted however that that such policy guidance does not have the force of law; however, decision-makers undertaking merits review should generally apply such policy unless it is unlawful or there are cogent reasons not to do so.[38] The Tribunal has not identified any reason why the policy guidance should not be applied in this case. The Tribunal also must consider the merits of each individual case.
3. The relevant policy guidance to this case is to be found in CPI 15 - Assessing Good Character under the Citizenship Act.[39] Paragraph 3.1 of CPI 15 provides that that 'good character' refers to the enduring moral qualities of a person.[40] It provides that a person of good character is likely to uphold and obey the laws of Australia.[41]
4. Paragraph 3.3 of CPI 15 notes that the term 'good character' is not defined in the Act and that the ordinary meaning of the words is to be applied.[42] The CPI makes reference to the definition of the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs which held:[43]

Unless the terms of the Act and regulations require some other meaning be applied, the words "good character" should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion... A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character... Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

5. The CPI also provides that the good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of their life may be relevant to the consideration of character.[44] The assessment of an applicant's character is an important component in the Minister's decision to approve or refuse the applicant's citizenship application.[45]
6. Paragraph 8 of CPI 15 deals with the requirement to obtain criminal history checks for time spent outside Australia. The policy requires conferral applicants to provide an overseas penal clearance where the applicant has:[46]
   • held a permanent visa and lived or travelled outside Australia since turning 18; and
   • the total time spent outside Australia added up to 12 months or more; and
   • the time spent in any one country was an accumulated period of 90 days or more; or
   • if requested to do so by the Department.
7. Paragraph 9 of CPI 15 deals with the provision of criminal history checks for New Zealand applicants for conferral.[47] It provides that New Zealand citizen applicants who do not hold a permanent visa (that is, those who hold a Special Category (subclass 444) visa) are required to obtain overseas penal clearance certificates from New Zealand and any other country they have stayed in for periods totalling 90 days or more. The policy provides that this applies to New Zealand citizen applicants aged 18 regardless of how long the person has resided in Australia.[48] The policy also notes that a New Zealand citizen may have been born in another country and acquired New Zealand citizenship by conferral.[49] It notes that decision‑makers should request overseas penal clearances from the country of birth and/or country of usual residence prior to the applicant's migration to New Zealand.[50]
8. Paragraph 4.2 of CPI 1 - Citizenship by Conferral - General Eligibility confirms the position that good character is assessed at the time a decision is made on the application.[51]

1. At the hearing of the matter, the Tribunal admitted into evidence the following material:
   • Exhibit A1: Email of the Applicant dated 13 August 2024;[52]
   • Exhibit R1: T-documents comprising 150 pages; and
   • Exhibit R2: Respondent's Statement of Facts, Issues and Contentions ('SOFIC') dated 9 December 2024, plus Annexure.
2. The Applicant also gave evidence and was cross-examined.

1. The Respondent contends that the Applicant has taken insufficient steps to obtain a penal clearance from South Africa despite repeated requests to do so, and therefore the Tribunal cannot form an affirmative belief that the Applicant is a person of good character.[53]
2. The Respondent relies on O'Bryan J's remarks in BOY19 v Minister for Immigration and Border Protection where his Honour held that s 21(2)(h) requires a decision-maker to reach 'an affirmative belief that the applicant is a person of good character' and that 'it is not sufficient for the decision-maker to believe that there is a chance that the applicant is of good character.'[54] The Respondent contends that the Applicant's failure to comply with the request for an overseas penal clearance certificate means that the Tribunal is simply unable to properly assess the Applicant's character for the purpose of s 21(2)(h).[55]
3. The Respondent also annexed to its SOFIC an Incoming and Outgoing Passenger Card in the name of the Applicant in March 2000 in which the Applicant's nationality as shown on his passport was Greek.[56] The Respondent submits that the Applicant's failure to disclose his Greek citizenship on his application form prevented the Department from making additional enquiries into the Applicant's character.[57] The Respondent contends that the Applicant's failure to declare his previous citizenship at the time of his application should weigh against a finding that he is of good character because it indicates he has been dishonest in his dealings with the Department.[58] The Respondent cites a number of authorities in support of this contention.[59] The Respondent also cited some previous Tribunal decisions which dealt with the failure to provide an overseas penal clearance.[60] In each of these decisions, the Tribunal determined that the failure to provide the overseas penal clearance meant that the Tribunal was unable to determine the good character requirements under the Act and the delegate's decision in each instance was affirmed.

1. The Applicant gave evidence of his background and move to Australia. He told the Tribunal he moved to Australia in 2008 with his wife. Both of his children are Australian citizens.
2. He gave evidence that he moved to New Zealand from South Africa, where he was resident for approximately three years before applying for New Zealand citizenship.
3. He also gave evidence of the efforts he undertook to obtain the South African police clearance certificate which included:
   • Having his fingerprints taken and relevant documents certified;
   • Posting the material by registered post to South Africa;
   • Monitoring the progress of the registered post on his Australia Post app; and
   • Contacting the relevant department in South Africa to check on the status of the application.
4. The Applicant also noted he doesn't have any contacts in South Africa who can follow up the certificate on his behalf.
5. The Applicant acknowledged that by May 2024 he was getting frustrated with the process and felt that he had exhausted all of his options. He admitted that he understood the importance of obtaining the overseas clearance certificate. The Applicant also agreed that that he stopped trying to progress the penal clearance further once the status of the parcel in the Australia Post app stopped displaying updates.
6. In regard to the failure to disclose his previous Greek citizenship, the Applicant's evidence was that it was a complete oversight, and that he has only ever travelled to Greece on approximately three occasions for a few weeks at a time. When cross-examined on this issue, the Applicant explained that his father held Greek citizenship and that his father likely applied for a Greek passport on his behalf when the Applicant was a child. His evidence was that he last travelled to Greece twenty years ago and it was his genuine belief that when his Greek passport expired, so did his Greek citizenship. The Applicant maintained that the failure to declare his Greek citizenship was simply an accident.
7. The Applicant's written submission to the Tribunal also details the efforts he took to try and obtain his overseas clearance. He stated he was 'very upset' that the Department has not taken into account his contributions to Australia since living here, nor taken into account the fact that he is required to undergo mandatory police checks every two years as part of his occupation. The Applicant invited the Tribunal to take a holistic approach of his good character and submitted that the inability to obtain the overseas police clearance does not mean he is not of good character.

1. The Tribunal has considered and applied the policy guidance in this case. CPI 15 states that the overseas penal clearances are requested to ensure that applicants who have spent time overseas are of good character for the time they spent offshore.[61] Decision-makers are expected to consider penal clearance certificates/criminal records from Australia and overseas.[62]
2. The Tribunal acknowledges the efforts the Applicant has gone to in order to obtain this clearance. However, it appears that despite repeated extensions of time, and repeated Department engagement and assistance, the Applicant had elected by at least May 2024 not to pursue this request any further. The Tribunal appreciates this may have been a result of frustration with the process, but the Applicant was aware of the importance of the police clearance and appeared to understand its significance given he had lived in South Africa until the age of 26.[63] The Tribunal considers there were other avenues available to the Applicant to continue to pursue this information, and some of those were suggested to him by the Department in correspondence.[64]
3. The Tribunal agrees with the Respondent's contention that the period from 18 years to 26 years represents a significant amount of time in the Applicant's life, and his character for this period must be assessed.[65]
4. The Tribunal does not consider there is any reason to depart from the policy guidance that overseas penal clearances are required, particularly in circumstances where the period outside Australia accounts for approximately eight years of the Applicant's adult life. Without the overseas clearance, the Tribunal is unable to be satisfied that the Applicant is of good character.
5. In regard to the Applicant's failure to disclose his Greek citizenship, the Tribunal accepts that this deprived the Department of the opportunity of further considering the question of the Applicant's character. The Department made it plain in its email correspondence to the Applicant on numerous occasions that he was required to obtain overseas penal clearance certificates for any other country where he has stayed for 90 days or more.[66] If the Applicant disclosed his Greek citizenship, as he was required to, further information may have been required by the Department.
6. The Applicant's failure to declare his Greek citizenship in his application form or in any of the subsequent communications with the Department may have well been an omission, but the failure practically meant that the Applicant's character could not be fully interrogated. The Tribunal does not consider this failure to be deliberate, but it is relevant to the question of the Applicant's overall character for the purposes of s 21(2)(h) of the Act.
7. It has been previously held that Australian citizenship is a privilege not bestowed lightly.[67] Being satisfised of a person's good character is a requirement for eligibility of Australian citizenship under s 21(2)(h) of the Act. Without the overseas penal clearance, the Tribunal cannot be satisfied that the Applicant meets this requirement.

1. The Tribunal concludes that in the absence of the provision of an overseas penal clearance certificate, the Tribunal cannot be satisfied that the Applicant is of good character at this time.

[34] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024.

[38] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645.

[43] [1996] FCA 663; (1996) 68 FCR 422, 431-432.

[52] Although this email was received by the Tribunal prior to the Applicant lodging his application for review, it was agreed by the parties at the hearing that the Tribunal would receive such a document as the Applicant's 'submissions' in the review.

[54] Ibid [17] citing BOY19 [2019] FCA 574 [55].

[59] Ibid f/n 4 namely Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; (2015) 231 FCR 128 [60], VFWQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230 [32], and BOY19 [2019] FCA 574 [46]-[53].

[60] Exhibit R2 [18] citing Wong and Minister for Immigration and Border Protection [2013] AATA 775 [27]-[31] and Katambwe and Minister for Immigration and Border Protection [2016] AATA 989 [22].

[64] For example, in correspondence dated 20 May 2024, the Department recommended the Applicant contact Australia Post for issues regarding the posted mail or the South African Criminal Record Centre for further assistance in regard to the clearance. Their contact details were also provided.

[66] See Department's correspondence dated 9 November 2023, 15 November 2023, 8 January 2024 and 16 May 2024.

[67] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 [8].