Background
Marin Kola, an Albanian citizen and Australian permanent resident, applied for Australian citizenship by conferral in 2022. His history included traffic, passport-related, property and drug convictions. Separately, in 2008 he used a bogus United States passport obtained in Albania to re-enter Australia; the Court did not identify a conviction arising from that conduct.
A ministerial delegate refused the application because the delegate was not satisfied that Kola was of good character as required by s 21(2)(h) of the Australian Citizenship Act 2007 (Cth). The Administrative Review Tribunal affirmed that decision. Although it accepted that Kola was remorseful, had not offended since 2014, was assessed as presenting a low risk of reoffending, and had family and community support, it found that the seriousness and cumulative nature of his conduct and his disregard for Australian law outweighed those considerations.
Kola appealed to the Federal Court, alleging that the Tribunal had reasoned irrationally about his remorse and risk of reoffending, denied procedural fairness when assessing written character statements, and misapplied the statutory requirement by allowing historical offending to outweigh evidence of rehabilitation. A fourth ground was not pressed separately because counsel accepted that it added nothing to the third.
The Court’s Holding
Justice O’Callaghan dismissed the appeal with costs. The Tribunal could consistently accept that Kola felt remorse while also finding that his explanations continued to justify or minimise aspects of his conduct. A psychologist’s assessment that he posed a low risk of future offending was not equivalent to a finding that he was presently of good character, and the Tribunal was entitled to conclude that other considerations outweighed that assessment.
The Court also rejected the procedural-fairness ground. Kola had been on notice before the hearing that the Minister questioned whether the character referees knew the details of his criminal history. The Minister’s decision not to cross-examine them did not withdraw that contention or require the Tribunal to accept their statements at face value. The Tribunal raised the issue during the hearing, and Kola could have called the witnesses or sought to reopen the evidence.
Finally, the Tribunal applied the correct statutory question: whether Kola was of good character at the time of its decision. It expressly considered the passage of time, his conduct since 2014, remorse, family circumstances, community involvement and rehabilitation evidence. Its conclusion that those matters did not outweigh the seriousness and circumstances of his past conduct was an evaluative judgment open to it, not a misconstruction of s 21(2)(h).
Key Takeaways
- A low assessed risk of reoffending does not itself establish “good character” for citizenship purposes.
- Remorse and continued minimisation or justification of past conduct can coexist as factual findings.
- A party relying on character references may need to call the referees where their knowledge of the applicant’s history is disputed; an opponent’s decision not to cross-examine does not necessarily eliminate concerns about weight.
Why It Matters
The decision confirms the breadth of the evaluative inquiry into good character under Australian citizenship law. Historical offending remains relevant even after a lengthy offence-free period, provided the decision-maker assesses what the full evidence reveals about the applicant’s character at the time of decision.
It also illustrates the distinction between reviewable legal error and disagreement over evidentiary weight. Courts will not overturn a citizenship decision merely because an applicant considers rehabilitation evidence more persuasive than the Tribunal did, where the Tribunal identified the correct question, considered the evidence and reached a conclusion reasonably open to it.