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Mr Grimaldi sought review in the Administrative Appeals Tribunal. The hearing took place on 10 September 2010. He represented himself. The sole issue identified by the Tribunal was whether he was a person of good character under s 21(2)(h).

The undisputed history before the Tribunal recorded 18 offences from 1994 to 2006. The principal group involved social security fraud. Five offences between 1994 and 1998 concerned fraudulent claims for Job Search or Newstart Allowances, with an overpayment of $24,224.82. The District Court described that offending as “a serious case of sustained and deliberate fraud”. Mr Grimaldi received a 12-month sentence of imprisonment, but was released forthwith and ordered to be of good behaviour for two years.

A further 12 offences between 1998 and 1999 related to fraudulent claims for Sickness Benefit amounting to $2,615.99. In the sentencing material quoted by the Tribunal, the Magistrate rejected an explanation consistent with innocence and concluded that the conduct was knowing and deliberate. A later offence, in 2006, was failure to give way at an intersection, for which Mr Grimaldi was fined $306. The Tribunal described this last offence as less serious than the earlier offences.

Mr Grimaldi said he had misunderstood the application questions. He told the delegate that he did not think a traffic offence and court attendance would create a criminal record, and said the earlier matter involving his former partner and Centrelink had ended with charges being dropped. At the Tribunal hearing, he accepted that he had been convicted of social security fraud, but said he could not recall committing the offences. He also said he had looked quickly through the application and had not read the declaration that his answers were complete, truthful and correct in every detail closely.

The Tribunal considered a photocopied character reference from a business manager and gave it minimum weight because it considered the content insufficient. It ultimately affirmed the refusal. The decision was by Senior Member R W Dunne on 19 November 2010.

Why the court decided this way

The Tribunal began with the statutory test. Section 21(2)(h), as set out in the reasons, requires the Minister to be satisfied that a citizenship applicant “is of good character at the time of the Minister’s decision on the application”. The Tribunal treated the issue as one requiring an affirmative assessment, not merely the absence of proof of bad character.

For that approach, it relied on Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815. The Tribunal said that the decision-maker must be “positively persuaded” that the applicant is of good character. It added that where evidence raises a question about an applicant’s fitness, the applicant should provide evidence that enables the decision-maker to conclude that good character is established despite that concern. The reasons describe this as the need to provide a “level of comfort” to the decision-maker.

The Tribunal also relied on Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] 139 ALR 84 for the relevance of criminal convictions. It quoted Davies J’s explanation that “good character” is not a precise term, and that criminal convictions can be important primary information. The nature of an offence may reflect adversely on character, while the passage of time can make evidence of reform relevant. The Tribunal used that proposition as part of its assessment, rather than treating a conviction as automatically decisive.

The record mattered not only because it showed convictions, but because the Tribunal regarded it as a repeated course of deliberate offending. It noted the number of offences, their recurrence over several years, and the fact that some 1998–1999 offences were committed while earlier proceedings were underway. It also considered the sentencing comments quoted in the reasons, including the description of the first group as sustained and deliberate fraud and the Magistrate’s conclusion that the later conduct was knowing.

The Tribunal then assessed what had happened after the offending. The last recorded offence was the 2006 traffic offence, which the Tribunal said was less serious. However, it did not find evidence showing that Mr Grimaldi had changed his character. The character reference was considered insufficient in content and was a photocopy, so it received only minimum weight. In the Tribunal’s view, the applicant’s own explanations did not establish reform.

The application answers were an additional and important part of the analysis. The Tribunal found that Mr Grimaldi answered “no” to questions where the true answer was “yes”. It considered his explanation that he misunderstood the questions and was embarrassed to answer yes, but was not persuaded by it. The Tribunal said the correct answers would not themselves have prevented the delegate from considering the application. It also considered his response to the delegate to be evasive and misleading, particularly because he denied the convictions and said that all charges had been dropped.

The Tribunal used the Citizenship Instructions as policy guidance. It expressly said they were not binding on the Tribunal, but could assist with construction of the Act. The passages it considered relevant identify matters such as repeated convictions, offending over time, concealment, the time since the last offence, and evidence of changed behaviour. The Tribunal’s conclusion followed from its assessment of those factors against the evidence in this case.

Before and after state of the law

This decision did not purport to create a new test for citizenship character. It applied the statutory requirement in s 21(2)(h) and adopted an approach previously stated in Re Chen. The Tribunal treated the task as deciding whether it was positively persuaded that Mr Grimaldi was of good character at the relevant time. It also drew on Irving for the proposition that the nature of convictions and evidence of reform are relevant to character.

The decision’s contribution, as shown by its reasons, is an application of those existing propositions to a record involving repeated fraud, a later less serious offence, non-disclosure, and limited evidence of reform. It illustrates that the character assessment was not confined to asking whether an applicant had any convictions. The Tribunal considered the type and recurrence of the offending, the explanations given, the subsequent conduct evidenced in the material, and the quality of the character evidence.

The Tribunal also clarified the status it gave to the Citizenship Instructions in this review. They were not binding directions on the Tribunal. It nevertheless considered them useful policy guidance for identifying relevant factors and for assisting in construing the statutory test. That distinction matters when reading the decision: the Tribunal’s statutory reasoning is anchored in s 21(2)(h), while the Instructions informed its evaluation of the evidence.

The judgment does not provide a survey of the law before and after its decision, nor does it say that it changed, overruled, or extended any cited authority. Its reasoning is confined to the review before it. It should therefore be read as an example of how the Tribunal applied the cited character-assessment principles to the particular evidence, rather than as a statement that any one factor, such as a conviction or an incorrect answer, determines every citizenship character assessment.

Key passages with plain-English translation

The relevant statute required that the Minister be satisfied the person “is of good character at the time of the Minister’s decision on the application” under s 21(2)(h). In plain English, the statutory question was about the applicant’s character at the time of the decision, not simply whether he had ever committed an offence.

The Tribunal adopted Re Chen’s statement that it must be “positively persuaded that the applicant is of good character”. In plain English, the Tribunal needed affirmative material supporting the required assessment. If the evidence raised concerns, it expected the applicant to provide material that addressed those concerns. The decision does not say that the applicant had to disprove every allegation irrespective of its evidential basis; it describes the need to address the questions raised by the evidence before the decision-maker.

The Tribunal quoted Irving on the significance of criminal convictions and reform. The passage explains that a conviction is relevant because the decision-maker can examine whether the offence reflects adversely on character. If the conviction is old, the decision-maker can also consider whether the person has shown reform. Put simply, the Tribunal treated the record as evidence to assess in context, rather than as a mechanical test.

The Citizenship Instructions stated that “Concealment of any offences” may indicate an ongoing lack of good character. The Tribunal applied that idea to the application answers and the later explanation. In plain English, the way an applicant deals with an offence can itself form part of the assessment; the issue is not limited to the original conduct.

The Tribunal’s conclusion was that there was “sufficient material” to infer that Mr Grimaldi was not of good character. It relied on the nature of the offences, the apparent deliberate failure to disclose them, and what it considered an evasive and misleading response to the delegate. This is the Tribunal’s finding on the evidence in this review, not a universal rule about applicants with criminal records.

What fact patterns trigger this precedent

The decision is most directly relevant to a citizenship character assessment under s 21(2)(h) where the record includes repeated offending and the decision-maker must consider whether the applicant has demonstrated reform. Its facts involved repeated social security fraud over several years, convictions, a later traffic offence, and an application in which the applicant answered “no” to character-related questions.

It may also be relevant where an applicant gives an explanation for incorrect or incomplete answers and the decision-maker must assess that explanation alongside the underlying criminal history. In this case, the Tribunal compared the applicant’s explanation of misunderstanding and embarrassment with his application answers and his later response to the delegate. It regarded the response as evasive and misleading.

The decision also shows the relevance the Tribunal gave to the quality and content of character evidence. The reference was not rejected as irrelevant, but its photocopied form and insufficient content led the Tribunal to give it minimum weight. The reasons therefore provide an example of the Tribunal considering not only whether a reference existed, but what it said and how it addressed the applicant’s criminal background and alleged reform.

The facts should not be generalised beyond what the reasons support. The Tribunal did not state that every conviction, every failure to disclose, or every weak character reference necessarily prevents a positive character assessment. It weighed those matters together, with the pattern and seriousness of the offending and the evidence about subsequent behaviour. A different record could raise different evidentiary questions.

How later courts have treated it

The supplied judgment does not discuss any later court or tribunal decisions treating Grimaldi. It therefore does not establish whether later decision-makers followed, distinguished, or otherwise applied this decision. It would not be sound to infer a later line of authority from this judgment alone.

The authorities the Tribunal does identify are Re Chen, Irving, Drake, and Re Drake (No 2). The Tribunal applied the approach from Re Chen to the character question; cited Irving for the relevance of convictions, their nature, and reform; and referred to Drake and Re Drake (No 2) when explaining why ministerial directions and policy guidance could be useful without binding the Tribunal. Those are relationships stated in this decision, not evidence of how later cases treated Grimaldi.

The reasons identify the decision as [2010] AATA 922, made on 19 November 2010, and report that the decision under review was affirmed. They do not provide an appeal history or information about subsequent citation. Any account of later treatment would need to be checked against sources beyond the judgment supplied here.

Still-open questions

The decision does not define “good character” exhaustively. It quotes Irving’s observation that the term is imprecise and relies on the statutory requirement, the cited authorities, and policy guidance. The reasons do not set out a general formula specifying how much weight must be given to particular types of offences, how long a period without offending must be, or what evidence is invariably sufficient to establish reform.

The decision also does not explain in detail how the Tribunal would have assessed the record if the applicant had provided stronger evidence of changed behaviour or a more comprehensive character reference. It says the reference before it was insufficient and that no evidence of reform was present, but does not set a universal threshold for reference content or other evidence.

The application questions raise a further issue the reasons resolve only on their facts: how a decision-maker should assess an incorrect answer where the applicant says they misunderstood the question. The Tribunal found that Mr Grimaldi’s answers were wrong and his explanation unpersuasive. It does not establish that every mistake or misunderstanding is concealment, or specify what evidence would distinguish an innocent error from deliberate non-disclosure.

Finally, although the Tribunal referred to the time between offending and the citizenship decision, it did not identify a fixed period after which earlier convictions cease to be relevant. It treated the earlier fraud convictions, later conduct, and the applicant’s responses as part of an overall assessment. The judgment leaves the weight of those matters dependent on the evidence in the particular case.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on it, relying on it, or using any draft, have a qualified Australian lawyer check it.

Concealment of any offences - may be an indicator of a continuing lack of good character.

Length of time between last offence and application for Australian citizenship.

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A person's behaviour as evidenced by a criminal record is relevant to the assessment of character. Appropriate weight must be given to a person's behaviour immediately prior to the making of a decision.

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The applicant's behaviour since commission of a serious crime can in part be evidenced by the existence or otherwise of subsequent convictions. Other relevant factors that may be taken into account include whether or not the applicant has stable employment, their status in the community, involvement in activities indicating contempt/disregard or respect for the law or human rights.

The onus is on the applicant to demonstrate that there has been a change in their character since last offending.

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Decision makers are entitled to give substantially more weight to statutory declarations than to other statements. Declarations from character referees that acknowledge the person's criminal background, and attest to a change in character since, should be given considerable weight.

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