Can a Record of Non-Compliance with Visa Condition and Overstaying in Australia Lead to Australian Citizenship Refusal?

In VNG’s case, the Applicant applied to be an Australian citizen. However, it was refused by both the delegate of the Minister for Home Affairs and the Administrative Appeals Tribunal. The refusal was essentially based on the ground that the Applicant is not of good character as his immigration history shows that he had overstayed in Australia exceeding the period of 12 years.

Background Facts

The Applicant is a national of Vietnam. He entered Australia in 1997. He was subsequently granted a permanent visa in July 2014. Before the Visa Applicant was granted a permanent visa, he was an unlawful non-citizen for a period exceeding twelve years. The Applicant’s citizenship application was refused as the delegate was not satisfied that the Applicant was of good character as required by section 21(2) of the Citizenship Act.

What’s the Law?

 Subsection 21(2)(h) of the Act 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”. However, “good character” is not defined in the Act.

Is the Applicant a Person of Good Character to be Granted Australian Citizenship?

Essentially, the Tribunal in this case formed the view that the Applicant is not a person of good character, based on the immigration history of the Applicant.

In this case, the Applicant had been residing in Australia as an unlawful non-citizen for a period exceeding twelve years. In the Tribunal’s view, this constitutes a serious breach of Australia’s laws. The Tribunal took into consideration the fact that the Applicant did not take any steps to regularize his unlawful status throughout the twelve years. Furthermore, the Applicant was employed while he was an unlawful non-citizen. This further shows that the Applicant consistently flouted the Australian immigration laws and did so knowingly and deliberately. The Tribunal found that the applicant had deliberately misled the Immigration officers with respect to his identity in order to be able to remain in Australia unlawfully for a longer period. The Tribunal is of the view that good character is not limited to considerations of criminal conduct or the existence of criminal convictions.

Key Takeaways

You may be thinking that you have never breached any law or conducted any crime, and therefore you will satisfy the requirement of good character when you apply to become an Australian citizen. However, if you have a record of non-compliance with your visa condition and overstaying in Australia, this is a breach of the immigration law. This may eventually affect your application to become an Australia citizen. As the Tribunal said in this case “… the absence of criminal convictions in itself sufficient to establish that the applicant is of good character”. In any event, the good character test is very subjective, and it is not limited to only criminal conduct.

You can contact us by calling 02-27007200 or email our receptionist to book in a time at infor@ahclawyers.com if you intend to apply for an Australian citizen.