For the reasons apparent from the analysis I have undertaken above, I am satisfied that Mr Carey is, at the present time, a person of good character.
The decision under review is set aside. I remit Mr Carey's citizenship application to the Minister for reconsideration in accordance with these reasons, finding and decision.
[2]
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Steele and Minister for Immigration and Multicultural Affairs [1997] AATA 405
Zheng and Minister for Immigration and Citizenship [2011] AATA 304
Despite that understandable reluctance, the policy guidelines implicitly, and properly, reject the notion that "essential character" is fixed in time. The question to be determined is whether the contemporary evidence provides satisfaction about the person's "good character" at the present time:- see ACA_2007 s 16(2)(c). The length of time that has passed since the last instance of an applicant's serious impugned conduct is a relevant consideration, and it is a potentially mitigating consideration. I remarked earlier on the suggestion in the guidelines that good character involves characteristics that "have been demonstrated over a very long period of time". Other references in the policy guidelines refer to a "lasting" or "enduring" period of time - the precise extent of which will depend on "the merits of the each case":- seeCitizenship Policy Chapter 11, page 150. In relation to that concept the policy postulates, with understandable imprecision, that even after "the passage of many years" it may be "extremely difficult" to be satisfied of the contemporary good character of a person who has committed a "very significant offence" - a category that includes sexual assault and crimes against children.
Some possible insight into what may be regarded as "the passage of many years" can be derived from the disentitlement periods provided for in ACA_2007 in relation to citizenship by conferral. In that context, in addition to a requirement for positive satisfaction of a person's contemporary character, there is a prohibition on the grant of citizenship (i) within 2 years of a person's release from a 12 month sentence, (ii) within 10 years of such a release where the person has been subsequently sentenced to another such term of imprisonment: - see ACA_2007 s 24(6). The insight provided by that comparison is limited - because of the need (i) to recognise that the statutory preclusion operates independently of (and potentially despite) actual satisfaction of good character and, (ii) to have regard to all the considerations relevant to the particular person. Factors that will influence subjective views about the significance of the actual period since the person's significant or relevant offences will include the applicant's age at the time of the offence and particularly whether the offence was contributed to by no longer present circumstances or stressors - such as psychological or physical illness: It will also include impressions about the seriousness of the particular offences: Gany and Minister for Immigration and Citizenship[2010] AATA 966 at ; and additional evidence providing positive endorsement of the applicant's "post-offending" rehabilitation, good behaviour, and good repute: see at ; at - . Ultimately, and despite the generalities that can be drawn from the policy guidelines, a decision about what period of good behaviour appropriately conduces to satisfaction about contemporary good character "cannot be reduced to an arbitrary formula": see at .
Although satisfaction (or dissatisfaction) about a person's character is ultimately the result of an impressionistic evaluation of a range of considerations, it is not a matter of merely subjective preference in the weighing of those considerations. This point is inherent in the guidelines' reference to the person's lawful conduct, and the obligations of citizenship. But the policy guidelines attempt to add some degree of emphasis exhorting the citizenship decision maker to apply "community standards" rather than "their own personal standards". The Citizenship Policy (at Chapter 11, page 149) suggest that in applying this instruction decision makers should be enquiring (i) whether a person of good character would have engaged in the applicant's conduct, (ii) about the extent of the applicant's lawful conduct, (iii) about the extent of the applicant's compliance with Australian community standards, and (iv) about the extent that the applicant shares and respects Australian democratic beliefs.