Kabamba v Administrative Appeals Tribunal

The Tribunal's Decision 8 The Senior Member identified the need for the applicant to meet the requirements in s 21(2) of the Act which reads in part: (2) 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) … (d) … (e) … (f) … (g) …; and (h) is of good character at the time of the Minister's decision on the application. 9 The Senior Member noted correctly that the assessment of the applicant's character is at the date of the Tribunal's decision: BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [3] (O'Bryan J). 10 The Senior Member also noted that the assessment of good character is of the person's enduring moral qualities and not the good standing, fame or repute of the person in the community: Irving v Minister for Immigration Local Government & Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422. 11 The Senior Member considered the applicant's offending history comprising possession of a controlled weapon which was the applicant's most recent conviction on 10 December 2021. The Senior Member set out the facts of the offending by reference to the police facts presented to the Magistrates Court, accepted those facts as recorded at the time, and found that the applicant had possession of a machete which he was using in a threatening manner towards others. 12 The Senior Member also considered the applicant's four driving offences between 2016 and 2021, the latest of which was driving with a prescribed illicit drug on 23 November 2021, as well as the applicant's convictions for disorderly behaviour in public in 2018, and breach of a police order in January 2015. 13 The Senior Member identified earlier offences which had been committed some nine or ten years previously, noting that the applicant's offending history commenced within two years of his arrival in Australia and the breach of the police order referred to above occurred in circumstances surrounding the end of his relationship with the mother of his children. 14 The Senior Member noted there were no other offences or reports relating to this or any other relationship and that if those events had been in isolation and the applicant had not offended since it may not have affected the current assessment of his character. 15 However, the Senior Member noted the subsequent offences of disorderly behaviour which also involved intoxication, driving offences involving drugs and alcohol, and possession of a prohibited weapon. 16 The Senior Member referred to information from the applicant including character references and evidence called by the applicant to the effect that the applicant is a person who is hard-working, well-mannered, a good employee and who has shown understanding, empathy and compassion. The Senior Member did not doubt this was the case and noted that the applicant's circumstances appear to have changed once his son came to live with him. 17 The Senior Member concluded that the applicant's relatively recent convictions and his aggressive conduct towards others, as well as the repeated nature of his driving offences meant that he was not satisfied that the applicant was of good character and consequently did not meet the requirements of s 21(2)(h) of the Act. The Senior Member affirmed the decision.

Principles 18 The expression "good character" is not defined in the Act and it has been held that in the absence of any criteria as to what comprises "good character", it was an indication the Parliament intended the term to be used in a broad way: Grass v Minister for Immigration and Border Protection and Anor [2015] FCAFC 44; (2015) 231 FCR 128, [60]. 19 In Irving, the Full Court considered the meaning of the expression "good character" in the context of a provision of the Migration Act 1958 (Cth) empowering the Minister to refuse to grant a visa or entry permit to a person if satisfied, amongst other things, that the person is not of good character. 20 Davies J: at pp 424-425 observed: 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 The 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 turn 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. 21 In BOY19, O'Bryan J summarised the principles that were able to be distilled from the authorities about the meaning of the expression "good character" in s 21(2)(h) of the Act in the following terms: at [51] … 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. 22 It is apparent from the principles set out above that the matter of whether the Minister (or in this case the Minister's delegate) is satisfied that the applicant is of good character, is an opinion formed from an evaluative judgment.

The notice of appeal 23 There are four grounds of appeal: (1) The Tribunal failed to take into account the applicant's evidence about the actions of the police in relation to his conviction of 10 December 2021; (2) The Tribunal unreasonably accepted the police facts about the incident relating to 10 December 2021 without taking into account the applicant's evidence about the actions of the police in relation to the incident that led to that conviction; (3) The Tribunal failed to take into account the applicant's evidence about the incident that resulted in his conviction of 10 December 2021; and (4) The Tribunal's finding that the applicant was not of good character was legally unreasonable and amounted to a jurisdictional error. 24 The four grounds of appeal may be grouped conveniently into a contention of jurisdictional error on two bases: (a) First, grounds one to three contend the Tribunal failed to consider the applicant's evidence about an incident that resulted in his conviction on 10 December 2021 for possession of a controlled weapon; and (b) Second, ground four contends the Tribunal's finding that the applicant was not of good character was legally unreasonable.

Grounds one to three: failure to take into account relevant considerations 25 A failure to take into account a relevant consideration constitutes an error of law. In Minister for Aboriginal Affairs v Peco Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39, Mason J observed that it is only possible to make out a ground of the failure to take into account a relevant consideration if a decision-maker fails to take into account consideration which the decision-maker is bound to take into account in making that decision. The factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion in question. Where the statute expressly states the considerations to be taken into account, often it is necessary for the court to decide whether those identified factors are exhaustive or merely inclusive. If the relevant factors are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act in question. 26 The applicant, who was not represented and utilised the services of a French interpreter, explained the circumstances of his offending comprising possession of a prohibited weapon. He apologised for his behaviour, told the Court he was not a bad-tempered person, and suggested that the Tribunal had not really looked at his case. 27 The second respondent (Minister) submits that the commission of criminal offences is a relevant consideration as to whether a person is of good character. The Minister submitted the Tribunal was entitled to receive evidence of convictions and sentences and to treat as probative the factual matters upon which conviction and sentence were necessarily based: Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313, [38], [39], [41] (Branson J). 28 The Minister submits further that it is clear from the Tribunal's reasons that the Senior Member had regard to the entirety of the applicant's criminal and traffic history, including the most recent conviction in December 2021 for possession of a prohibited weapon, and that the Tribunal considered the applicant's evidence about the facts of the offence. Those facts did not differ from the police statement of facts before the Magistrates Court. 29 The Minister submits that the findings made by the Tribunal as to the applicant's offending history were open to it on the material before the Tribunal such that there was no failure to consider relevant considerations being the circumstances of the latest offending in 2021 and character evidence. 30 I accept the Minister's submissions. 31 It is for these reasons that grounds one to three are not made out.

Ground four - the Tribunal's decision was legally unreasonable 32 In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130], [135] Crennan and Bell JJ said: 130 In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case. 135 … Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. … 33 The Minister submits that even if an aspect of reasoning or particular factual finding of the Tribunal is shown to be irrational or illogical, there will be no jurisdictional error established if the reasoning or finding was immaterial or not critical to the ultimate conclusion or end result: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [60] referring to the observations of Wigney J as to the relevant principles concerning illogicality or irrationality in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] and [54]-[56]. 34 I accept that submission. 35 The Minister submits that the Tribunal's conclusion it was not satisfied the applicant was of good character was reached having considered the applicant's offending history, which detracted from the applicant's positive attributes of being hard-working, well-mannered and compassionate. To that extent, there was a rational and intelligible foundation for the Tribunal's decision such that it cannot be said to be illogical or irrational. 36 I accept that submission. 37 It is for these reasons that ground four is not made out.

Conclusion 38 The appeal is dismissed. 39 There is no reason why the applicant should not pay the second respondent's costs of the proceedings, which are to be assessed by a Registrar of the Court if not agreed. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.