FEDERAL COURT OF AUSTRALIA

Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellants pay the respondent’s costs of the proceeding.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

Introduction

1                          The first appellant (“Dr Hneidi”) is a nephrologist who conducts a medical practice in Beirut where he lives with his wife and four children.  Mrs Hneidi holds dual Australian and Lebanese citizenship and one of their daughters is an Australian citizen.

2                          Dr Hneidi was granted permanent residency status in 2001.  He made an application for Australian citizenship in 2006 relying upon a provision in the Australian Citizenship Act 1948 (Cth) (“the Act”) which conferred a discretion on the Minister to grant citizenship to a permanent resident who is the spouse of an Australian citizen.

3                          A delegate of the Minister refused the application.  The delegate’s decision was affirmed by the Administrative Appeals Tribunal (“the Tribunal”) which took into account, in exercising its discretion the terms of the Australian Citizenship Instructions (“the Instructions”): Hneidi and Minister for Immigration and Citizenship [2008] AATA 923.

4                          The Instructions are a statement of departmental policy, having been approved by a senior departmental officer, not the Minister or Parliamentary Secretary.

5                          The primary judge dismissed an appeal on a question of law under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth).  His Honour found that although the Tribunal proceeded upon the basis that the Instructions were ministerial policy, not departmental policy, that was merely a question of weight which was a matter for the Tribunal.

6                          Importantly, the primary judge found that the fundamental question was whether the Tribunal member made her own independent assessment of the material.  His Honour found that she did.

7                          A further question which arose before the primary judge was whether the Tribunal took into account the fact that one of Dr Hneidi’s children is an Australian citizen.  His Honour was satisfied that the Tribunal member did so.

8                          Dr Hneidi and his three non-Australian citizen children appeal against the orders of the primary judge.  The appeal raises the same questions as those which were considered at first instance.

9                          The essential question is whether the Tribunal made its own independent assessment of the material in coming to the correct or preferable decision.  This question arises in light of the fact that the Tribunal had regard to the Instructions and considered that there was an insufficient basis to depart from them.

10                        The gravamen of the submission of counsel for the appellants was that although the Tribunal was entitled to have regard to the Instructions, it approached the matter by a wrong process of reasoning because different weight ought to be given to departmental policy than that which is given to Ministerial policy.

11                        The relevant aspect of the Instructions was the statement that the primary objective of the residency requirements which apply under s 13(9) of the Act is the development of close and continuing ties with Australia.  The Tribunal found that Dr Hneidi failed this test.

12                        The second issue which arises on the appeal is whether the primary judge was in error in accepting that the Tribunal took into account the fact that one of Dr Hneidi’s children is an Australian citizen.

The relevant provisions of the Act and the Instructions

13                        Section 13(9) of the Act conferred a discretion on the Minister to grant a certificate of Australian citizenship to persons who satisfied certain jurisdictional criteria.  The relevant jurisdictional criteria were stated in sub-paragraphs (a) and (c) which applied to the children and to Dr Hneidi respectively.

14                        Section 13(9) provided, relevantly:

“(9) Subject to subsection (11), the Minister may, in the Minister’s

discretion, upon application in accordance with the approved form,

grant a certificate of Australian citizenship to a person:

(a) who has not attained the age of 18 years;

…

 (c) who is a permanent resident and is the spouse, widow or

widower of an Australian citizen;  …

 …”

15                        Chapter 4.5 of the Instructions set out the criteria which applicants for citizenship “are usually required” to meet.  They included the criterion stated in section 4.5.2 as follows:-

“.. the applicant is likely, if granted a certificate of Australian citizenship, to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.”

16                        Section 4.5.2 also included a requirement for the person who had acquired permanent resident status to have been physically present in Australia as a permanent resident for at least two years in the five years immediately before the application for citizenship.  This was subject to the proviso that at least twelve months of the two year period be within two years immediately before the date of the application.

17                        Section 4.5.3 recognised that spouses of Australian citizens living overseas with their spouse may have difficulty meeting the requirement that they physically reside in Australia for the specified period, notwithstanding the fact that they have obtained permanent residency visas.  Section 4.5.3 continued as follows:

“The primary policy objective underpinning the residence requirements is the development and maintenance of close and continuing ties with Australia.  This policy objective can be achieved through the applicant’s relationship with their Australian citizen spouse, children if any, extended family, and through return visits to Australia.”

Background Facts

18                        The relevant background facts were set out in the reasons of the primary judge at [13]ff.  It is not necessary to repeat them but we will set out the most salient facts.

19                        Dr Hneidi holds Lebanese and Syrian citizenship.  He was granted a sub-class 100 visa in September 2001 which gave him permanent residency status in Australia.  He visited Australia in October 2001 with a view to moving here permanently but returned to Lebanon twenty days later when his father took ill.

20                        Dr Hneidi has not returned to Australia since that visit which was the only occasion on which he has been physically present here.

21                        Mrs Hneidi was born in Beirut and has spent most of here life there.  She is a Lebanese citizen but her mother was born in Australia which enabled Mrs Hneidi to obtain Australian citizenship by descent in 1971.

22                        Mrs Hneidi has family in Australia with whom she has remained in contact.  She has visited Australia on a number of occasions, remaining here for relatively short periods of time on each visit.

23                        Three of the children hold permanent resident visas which were granted in 2006 and 2007.  The second youngest child, a daughter, Maya, was born in Australia and is an Australian citizen by birth.

24                        In July 2006 serious hostilities broke out in Lebanon between Hezbollah and Israeli forces.  The Hneidi family, along with many other civilians fled Lebanon.  The Australian Embassy was only able to assist Australian citizens resident in Lebanon and was therefore not able to extend its assistance to Dr Hneidi and the three children other than Maya.  This presented the family with some difficulties in their departure from Lebanon as they wished to remain together as a family unit.

25                        Dr Hneidi applied for Australian citizenship on 30 October 2006 before the Australian Citizenship Act 2007 (Cth) came into force.  As a result, his application was considered under the previous Act which was passed in 1948.  There was no suggestion that the subsequent legislation had any bearing on the application.

26                        The children (other than Maya) were added as parties when the review application was brought before the Tribunal.  They were applicants in the proceeding before the primary judge and are appellants on the appeal.

The Tribunal’s reasons

27                        The Tribunal accepted that policy statements are not binding on it but said that they must be brought to account and given appropriate weight.  It identified the “underlying theme” in Dr Hneidi’s application as the fact that he does not receive the same level of protection from the Australian Embassy as his wife in the event of hostilities in Lebanon.  The Tribunal did not accept that this argument held sufficient weight that:

“… the usual policy should be ignored.”

28                        The critical findings in the Tribunal’s reasons were stated at [90] – [92].  It said:

·                the flaw in Dr Hneidi’s argument lay in the complete lack of certainty about his future plans to come to Australia, his failure to satisfy any of the residency requirements and his lack of personal and genuine connection with Australia;

·                the application for citizenship was motivated by a sense of fear and insecurity experienced by his family during the 2006 hostilities;

·                even if Dr Hneidi is an Australian citizen in the event of future hostilities, there is no certainty that his path of evacuation would be easier; and

·                there was an insufficient basis to depart from the Instructions.

29                        Significantly, the Tribunal said at [92] that Dr Hneidi had not availed himself of opportunities that were open to him to live and work in Australia.  It pointed out that it would be to Australia’s advantage if he should do so.  The Tribunal also said that Dr Hneidi’s inability to extract himself from Lebanon:

“… must cast some doubt over when and if he will ever come to Australia.” 

30                        The Tribunal commented at [93] that citizenship ought not to be granted “merely as a safety net” for protection in the event of warfare.

31                        In the second paragraph of its reasons, the Tribunal recognised that Maya was born in Australia and holds Australian citizenship.  It also made an implied reference to her status when referring to Dr Hneidi’s argument that “he and the children who are not Australian citizens” are disadvantaged during hostilities.

32                        The Tribunal also referred in a number of places to the single family unit (see [70], [112] and [113]).  This appears to be an indirect reference to Maya as a member of the unified family.

The primary judge’s reasons

33                        The primary judge referred to a long line of authorities dealing with the question of the relevance of stated government policy to the exercise of a decision-maker’s administrative function.  The central authority is a decision of a Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 (“Drake”).  The authorities include two decisions of Brennan J sitting as President of the Tribunal; see Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (“Drake No 2”) and Re Becker and Minister for Immigration and Ethnic Affairs (1977) 15 ALR 696 (“Becker”).

34                        The learned primary judge said at [50] that the overarching principle to be gleaned from the authorities is that the Tribunal must make an independent assessment of the material before it with a view to reaching the correct or preferable decision; the authorities are clear that the weight to be placed on government policy is a matter for the Tribunal but this principle cannot be pushed past the point at which the Tribunal no longer makes an independent assessment.

35                        His Honour accepted that the Tribunal erred in proceeding on the basis that the Instructions were Ministerial guidelines.  However, he considered that a fair reading of the reasons revealed that the Tribunal member did not adopt an incorrect approach to the Instructions as departmental policy.  The primary judge continued at [56] by saying:

“In so far as it might be said that she placed greater weight on the Instructions than was called for, that was a question of weight which was a matter for the Tribunal.”

36                        The primary judge concluded this aspect of his reasons at [57], by finding that the Tribunal member had made an independent assessment of the material before her.

37                        His Honour observed at [61] that the Tribunal was aware, and made references to the fact, that Maya is an Australian citizen.  His Honour was satisfied that the Tribunal took this fact into account because it contrasted the position of Mrs Hneidi and Maya with that of Dr Hneidi and the other children.

The First Issue:  Independent Assessment vs Government Policy

38                        The first issue encapsulates several grounds of appeal (namely grounds 1 to 4 in the Notice of Appeal) but it is convenient to deal with them together.

39                        The effect of the submission of counsel for Dr Hneidi was:

·                there is a distinction to be drawn between the weight to be given to policy formulated at the departmental level and that which is to be given to policy formulated by the Minister;

·                by failing to recognise this distinction, the Tribunal adopted a wrong process of reasoning, thereby according an impermissible level of weight to the Instructions and fettering the exercise of its discretion to the facts of the case.

40                        The seminal authority on the entitlement of an administrative decision-maker to take into account a statement of governmental policy is the decision of the Full Court in Drake, in particular the joint judgment of Bowen CJ and Deane J at 590-591.

41                        For present purposes, four relevant propositions emerge from their Honours’ consideration of that question.  The first is that the decision-maker is entitled, in the absence of specifically defined criteria for the exercise of the discretion, to take into account “government policy”.  Thus, where the Tribunal is not under a statutory duty to regard itself as bound by the policy, it is entitled to treat the policy as a relevant consideration.

42                        Second, in the absence of a specific statutory provision (which would no doubt be unusual) the Tribunal is not entitled to abdicate its function of determining whether the decision under review was, on the material before the Tribunal, the correct or preferable one, to a more passive function of determining whether the decision conformed to the relevant policy.

43                        Third, it is not desirable to frame a general statement of the part which government policy should ordinarily play in the determinations of the Tribunal.  That is a matter for the Tribunal to determine in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions but balanced against the ideal of justice in the individual case.

44                        Fourth, the borderline between cases in which the Tribunal has abdicated its functions to those of an unthinking application of “government or Ministerial policy” to the facts may sometimes be blurred.  But where the Tribunal considers that the correct or preferable decision results from the application of such a policy, it should make it clear that:

“… it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion” 

45                        There is nothing in the statement of these principles which draws any distinction between departmental policy and Ministerial policy.

46                        In his discussion of the relevance of policy in Drake (No 2), Brennan J at 643-644 referred, in an obiter remark, to the fact that under the Westminster system, a Minister is politically responsible to the Parliament for the policy adopted by him or her to guide the exercise of the discretionary power.

47                        But this statement is not of itself a sufficient basis for drawing the distinction relied upon by Dr Hneidi.  Brennan J was dealing only with the review of a Minister’s order and the question of what part the policy statement promulgated by the Minister should play in considering the circumstances of the case.  No occasion arose for a determination of any difference between the role of departmental and Ministerial policy in the consideration of that question.

48                        The principle for which Drake (No 2) is authority is well established.  It is that where a Minister has adopted a general policy as a guide to the exercise of a discretionary power, the Tribunal will consider an argument against its application to the facts of the case but “cogent reasons” will have to be shown against its application: see page 645.

49                        We do not consider that the gloss on this statement added by the words “especially if the policy is shown to have been exposed to parliamentary scrutiny”, support Dr Hneidi’s contention as to the distinction between departmental and Ministerial policy.  Again, this is because his Honour’s remarks were confined to a discussion of the place of Ministerial policy in the review of administrative action.

50                        The only authority to which we were referred that supports the distinction is the decision of Brennan J, sitting as President of the Tribunal, in Becker.  His Honour there referred (at 701) to the difference between policies made or settled at the political level and those made at the departmental level.

51                        His Honour said that one reason for the distinction lies in the opportunity of Parliament to review Ministerial policy.  He went on to say:-

“Different considerations may apply to the review of each kind of policy, and more substantial reasons may have to be shown why basic policies – which might frequently be forged at the political level - should be reviewed.”

52                        In our view, the observations in Becker do not support the proposition relied upon by Dr Hneidi.  There are a number of reasons for this.

53                        First, the observations are obiter and are not expressed as unqualified considered dicta.

54                        Second, in any event, the highest that the observations rise for present purposes is that different considerations may apply to the review of each different kind of policy.  This says nothing about the relevance of, or weight to be accorded to, Ministerial policy as against departmental policy.

55                        Third, the authority to which his Honour referred in apparent support of the distinction was concerned with a different question from that which is presently in issue; see The Queen  v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 (“Ipec-Air”).

56                        The question which arose in the Ipec-Air case was whether mandamus should be ordered against the Director-General of Civil Aviation to compel him to consider an application for the importation of aircraft.  The relevant issue was the nature of the discretion conferred on the Director-General and the extent to which he was entitled to take into account the instructions of the Minister:  see the discussion of Ipec-Air by Mason J in Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia (1977) 139 CLR 54 at 82-83.

57                        Ipec-Air therefore says nothing about any distinction between the weight to be given by the Tribunal to departmental policy against Ministerial policy.

58                        It is true that a number of authorities to which the learned primary judge referred may be thought to be authority for the proposition that “great weight” ought to be given by the Tribunal to policies developed in the political arena: see Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at 380; Federal Commissioner of Taxation v Swift and Others (1989) 18 ALD 679 (“Swift”) at 692.  But that is not to say that lesser weight must be given, regardless of the factual circumstances, to statements of departmental policy.

59                        In any event, we do not consider that any error is disclosed in the approach adopted by the Tribunal.  As the primary judge observed, the overarching principle is that the Tribunal must make an independent assessment.  That is precisely what it did.

60                        The Tribunal accepted that policy statements (which included the Instructions) were not binding on it but that such statements must be brought to account.  The Tribunal did not abdicate its review function so as merely to adopt an uncritical application of the policy statements in the Instructions.  Rather, it addressed the merits of Dr Hneidi’s application, in particular at [90] – [92].  The Tribunal concluded on the facts of the case that Dr Hneidi failed to satisfy the residency requirements and had no close ties with Australia.

61                        The effect of Dr Hneidi’s argument about his insecurity in times of crisis was, as the Tribunal recognised, a submission that the policy should be ignored.  Whether or not there is a distinction between the weight to be accorded to departmental and Ministerial policy, the authorities make it plain that the Tribunal is to take the policy into account and give it an appropriate level of weight.  That is what the Tribunal did.

62                        To do otherwise would be to permit “administrative chaos” and inconsistency in administrative decision making: Swift at 692.  The approach urged on us by Dr Hneidi’s counsel would be to say that the Tribunal was not entitled to give any weight to the Instructions.  That is plainly contrary to established authority.

63                        There was a further argument advanced by Dr Hneidi under ground 1.  This was that the Tribunal was required to consider “the propriety of the particular policy”: Drake at 591. 

64                        In our view this submission was correctly answered by the primary judge at [55].  First, there was no suggestion that the policy was unlawful, so that the Tribunal was not required to consider the propriety of the policy as such.  The Tribunal is not a forum for the review of the desirability of government policy.

65                        Second, what is required is that the Tribunal consider the “propriety” of applying the policy to the facts of the case; that is what the Tribunal did.

66                        Third, in any event, the Tribunal gave implicit consideration to the propriety of the policy by endorsing the remarks made in an earlier decision in Re Sadiq and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 75.  In that decision, it was observed that the essential themes underlying the grant of citizenship pursuant to
s 13(9)(c) of the Act are residence and a close continuing association with Australia.

Issue 2

67                        It is true that a matter not mentioned in the Tribunal’s statement of reasons entitles a court to infer that the Tribunal did not consider the matter to be material:  Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69].  However it may appear from an examination of the whole of the Tribunal’s reasons that a matter was taken into account even though it was not mentioned expressly:  WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46] – [47]; Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180 at 184.

68                        Here the Tribunal made express reference to the fact that Maya is an Australian citizen and, when considering Dr Hneidi’s central argument, contrasted his position and that of the other children, with the position of Maya and Mrs Hneidi.

69                        Accordingly, we can see no error in the primary judge’s finding that the Tribunal took into account the fact that Maya is an Australian citizen.

Conclusion and Orders

70                        The appeal should be dismissed with costs.

Associate:

Dated:         5 March 2010