FEDERAL COURT OF AUSTRALIA

Hamade v Minister for Immigration and Border Protection [2017] FCA 402

ORDERS

THE COURT ORDERS THAT:

1.    The Application be dismissed.

2.    The Applicants pay the Respondent’s costs as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J:

1    The first-named Applicant is in immigration detention. He is due to be removed from Perth to Beirut in Lebanon, at some time tomorrow. By proceedings urgently commenced in this Court last week, he and his mother now seek urgent relief to restrain the Commonwealth from deporting him. For the reasons which follow, that application for an injunction should be refused.

2    The Second Applicant, Ms Alia Hamade, and the First Applicant, Mr Said Hamade, arrived in Australia on 21 March 1974 from Lebanon. Mr Hamade is the son of Ms Hamade. At the time of their arrival in 1974, he was 14 months old. He is now 43 years old. Ms Hamade, some years after her arrival, made an application for Australian citizenship which was dated 22 September 1980. On the application form which she completed, Ms Hamade also applied for citizenship on behalf of three of her children, including Mr Hamade, who was, at the time that the application was made, seven years old.

3    Before dealing with the remaining facts, it is useful to note some aspects of the legal regime surrounding the grant of citizenship as at the time Ms Hamade made the application in September 1980. At that time, citizenship was regulated by the Australian Citizenship Act 1948 (Cth) (now repealed) (‘the Act’). As at 1980, insofar as the present topic is concerned, it contained provisions which were relevant to her application as follows.

4    First, s 13 of the Act authorised a person who met the relevant eligibility to apply to the Minister for a grant of citizenship. The provisions of s 13 are not pertinent to the present debate except insofar as they concern one matter, to which I will return later in these reasons. More significant are those provisions which dealt with the making of citizenship applications on behalf of persons under the age of 16. Relevantly, s 14(9) provided that:

‘The Minister may, upon application in the approved form, include in a certificate of Australian citizenship, either at the time of the granting the certificate or by later amending the certificate, the name of a child who has not attained the age of sixteen years, and of whom the grantee is the responsible parent or guardian.’

5    The expression ‘responsible parent’ was in turn defined in s 5(1) of the Act to mean:

‘…in relation to a child, means the father of that child or, where the father is dead or the mother has been given the custody of the child by order of a court, or the child was born out of wedlock and resides with the mother, means the mother of that child.’

6    Also relevant to the present discussion are ss 15(1)(b) and 15(4). Section 15(1)(b) provided:

‘A person to whom a certificate of Australian citizenship has been granted under this Division shall be an Australian citizen –

…

(b)     in the case of a person who has not attained the age of sixteen years or a person to whom sub-section (2) of section 14 applies – as from the date upon which the certificate is granted.’

7    Subsection (4) provided:

‘A person whose name is, under sub-section (9) of section 14, included in a certificate of Australian citizenship shall, if not already an Australian citizen, be an Australian citizen as from the date upon which his name is so included or the date upon which the grantee of the certificate of Australian citizenship becomes an Australian citizen, whichever is the later.’

8    Those provisions, it will be seen, at this stage created a regime under which a person applying for Australian citizenship could include upon their application their children, but only if the parent in question was either the father or the mother having obtained a relevant custody order.

9    I now turn to some matters which are controversial between the parties. Having made the application for citizenship on 22 September 1980, Ms Hamade was eventually summoned for an interview with a reviewing officer. This interview took place on 13 November 1980. As a result of that interview, a document was completed which consisted of an interview report. The interview report had two non-citizen children listed upon it which appear to have been deleted by handwriting. It appears that Ms Hamade has signed the document, certifying the information on it to be correct. Then there are some comments at the end of the document which the Respondent submits say:

‘Ppt [passport] verified, wants application [sic] proceed without children.’

10    It is also relevant to note that the person conducting the interview has ticked the box marked ‘yes’ next to question 15, which was:

‘Can the applicant carry on a general conversation in English?’

11    One reading of this document might be that because Ms Hamade was the mother of the children, and because s 5(1) of the Act did not define a ‘responsible parent’ to include, for the purposes of a citizenship application, the mother – that during the course of the interview, the inability of Ms Hamade to include the children upon her citizenship application was brought to her attention, and with her agreement, the children were removed from it. However, this is controversial, as I have said, between the parties.

12    In an affidavit filed in these proceedings, Ms Hamade gave evidence about what she says took place at that meeting. She says that she utilised the services of an interpreter in the course of the process and that she made it clear that she wished her children to be included in the application. She says that she was not told that her children would not obtain citizenship, and she believed at the end of the process that her children were included in the application.

13    Plainly there is a contradiction between what can be inferred from the form and the evidence of Ms Hamade. Indeed, there is an anterior dispute as to whether the handwriting on the form is, in fact, to be interpreted as the Minister suggests or whether it might have some other meaning. It is an aspect also of Ms Hamade’s account that she did not remove the names of her children from her application form, with the further implication, one would think, that this was done by someone else without her approval.

14    In the circumstances, I propose to assume that it is reasonably arguable that the evidence of Ms Hamade could establish at trial that her children were not removed from the application by her, and that she was not told at any stage that they were not included in her application form. To put that matter another way, I propose to assume that in relation to this factual controversy between the Minister and the Applicants – that the Applicants have a triable case.

15    Now, the effect of section 5(1) and the definition of ‘responsible parent’ was, as I have already indicated, to have the effect that Ms Hamade was unable to apply, as she had on 22 September 1980, to include the children on her citizenship application. This is because at that time, she did not fall within the definition of a ‘responsible parent’, not being the father of the child and not being a mother who had obtained custody of the child by a court order.

16    On 16 February 1981, however, Ms Hamade was granted custody of her children by a Court of Petty Sessions sitting at Campsie. This was not a matter which she drew to the Minister’s attention. On 28 April 1981, the relevant Departmental official certified that Ms Hamade’s application for citizenship was now ready for ministerial approval. Of course, by the time that had occurred, Ms Hamade had obtained custody of her children and was therefore within the definition of a ‘responsible parent’ under s 5(1) of the Act. Consequently, had this matter been drawn to the attention of the Minister, and having regard to the text of s 14(9), it is possible that the Minister could have included on any certificate of citizenship issued by him to Ms Hamade, her children; that is to say, it would have been within his authority to do so.

17    On 13 May 1981, the Minister in fact granted approval for Ms Hamade’s grant of citizenship; and on 8 October 1981, the Minister granted Ms Hamade citizenship by means of a certificate. The certificate does not have the names of Ms Hamade’s children upon it. This is consistent, I suppose, with the deletion of her children from the application form. It remains, however, a significant factual matter at the heart of the present application.

18    It’s now useful at least in the first instance, to outline the Applicants’ argument for an injunction.

19    First, it is submitted that Ms Hamade had not withdrawn her children from the application made on 22 September 1980. To the extent that the children appear to have been deleted from the form which had been signed by her, I have accepted as a triable issue whether that is in fact so or whether instead the children were deleted from the form by someone without her authority.

20    Secondly, it is said that at the time the Minister approved her citizenship application on 13 May 1981, the fact was that, by reason of the custody orders having been obtained before that date, she was a ‘responsible parent’ within the meaning of s 5. Therefore, it followed that the Minister had jurisdiction under s 14(9) to include her children on the eventual grant of a certificate of citizenship. The Applicants went further than this, however, and submitted that where in s 14(9) the word ‘may’ appeared, in fact it was to be interpreted as meaning ‘must’.

21    The effect of this was that because Ms Hamade satisfied the jurisdictional requirements of s 14(9) by reason of being a ‘responsible parent’, and because the duty which arose on the satisfaction of that condition precedent was mandatory in terms, Ms Hamade had been entitled, as a matter of law, to have her children included in her certificate when it was eventually issued to her. The Applicants put the legal defects which arose from this state of affairs on two different bases. First of all, it was said that the issue of the certificate of citizenship without the children being present upon it amounted to a refusal of an application to include the children upon it. It was then said this decision should be quashed, and it was said that mandamus should issue to require the Minister now to comply with the imperative duty under s 14(9) to include the children upon the application.

22    Secondly, it was said that it was unreasonable in the legal sense for the Minister to proceed, as he had, because Ms Hamade had been told at the time of the interview, on 13 November 1980, that her citizenship would automatically transfer to her children or that she had not been told that they had been removed from the application form. This was also said to give rise to a right to quash the refusal decision and to mandamus. The Applicants also submitted they were entitled to declaratory relief which would put them in the same position they would have been in if the application had included the children on it originally.

23     It is now necessary to mention a few other facts. Ms Hamade received her citizenship certificate on 8 October 1981, but as I have already noted, it did not have her children on it at that time. I am prepared to infer that this must have been obvious to her, and she would have been aware from October 1981 that her children had not been included upon her citizenship certificate.

24    The evidence shows that following that, she did not seek to take any steps that would have fixed that situation. In particular, she did not correspond with the Department, suggesting that the children she believed had been included on her application had been left off. Nor did she apply under s 14(9), as she easily could have, to have her citizenship certificate amended so that the children were included upon it. Throughout the remainder of Mr Hamade’s childhood therefore, it appears that no steps were taken to vindicate what Ms Hamade now says was the case in relation to her application in 1980. No real explanation has been put before me as to why that is so. It is also necessary to note that on 6 February 1991 Mr Hamade applied for Australian citizenship. One can infer from that, that at the time, he must have been aware that he was not an Australian citizen. That application was refused on 17 September 1991 due to an undeclared adverse police record.

25    It seems to me that Mr Hamade has been aware for a number of years, including up to 1991, that he was not of Australian citizenship. He applied for example, for a Return Resident Visa in 1997 and, at that time, travelled on a Lebanese passport, relying on that visa to re-enter Australia on a number of occasions. The point of those observations is to underscore that Mr Hamade has been aware for many years of his citizenship status, and yet, has never taken any steps to bring the argument advanced today forward for resolution until very recently last year. It is also relevant to note that, commencing in 1991, Mr Hamade began upon a series of criminal activities which resulted in his conviction for various offences. His most recent conviction was in June 2010, as a result of which he was sentenced to nine years' and five years' imprisonment respectively in relation to two different charges. The charges were of a serious nature.

26    The fact that he was imprisoned for periods in excess of 12 months brought him within the scope of the operation of s 501(3A) of the Migration Act 1958 (Cth), which provides for the cancellation of visas of non-citizens who have failed what is termed ‘the character test’. In this case, as a result of the operation of that provision and the exercise of a ministerial consideration, his visa was cancelled with effect from 19 December 2014. He sought revocation of that decision on 20 January 2015, but on 18 August 2015, the Minister decided not to revoke that cancellation. Thereafter, Mr Hamade applied for a protection visa which was refused and that refusal was confirmed by the Administrative Appeals Tribunal on 30 September 2016. It will follow from the account I have just given, that Mr Hamade has been in immigration detention since 15 January 2015 when he was released from prison.

27    As I have said, I propose to refuse the application for an injunction. If Mr Hamade is right in all of his submissions in relation to the operation of the law and in relation to the factual contentions involving what occurred at the interview with his mother in November 1981, it seems to me that it would follow that Ms Hamade’s application to have her two children included upon her certificate of Australian citizenship would effectively remain unresolved. Left in a vacuum, it would appear that an obligation would arise to have the Minister consider that application. The 1948 Act has now been repealed and replaced by the Australian Citizenship Act 2007 (Cth). Schedule 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) contains transitional provisions designed to regulate, inter alia, the status of applications made under the now repealed 1948 Act. Subitem 7(2) of schedule 3 provides:

‘If a person’s application (the old application) made under section 13 … of the old Act had not been decided immediately before the commencement day, the old application is, on and from the commencement day, taken to be an application (a new application) to become an Australian citizen made under section 21 of the new Act.’

28    I mentioned earlier in these reasons, without setting out its full text, s 13 which is referred to in this subitem. As I said then, s 13 was the provision which authorised a person under the 1948 Act to apply for citizenship. The effect, therefore, of subitem 7(2) is that Ms Hamade’s application under s 13 of the Act (and with it the operation of section 14(9)) is therefore taken to be an application now under the 2007 statute.

29    Section 21 of the Australian Citizenship Act 2007 (Cth) deals with applications for citizenship. Section 21(2) provides:

‘21 Application and eligibility for citizenship

…

(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)    satisfies the general residence requirement (see section 22)    or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

(d)    understands the nature of an application under subsection (1); and

(e)    possesses a basic knowledge of the English language; and

(f)    has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

(g)    is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

(h)    is of good character at the time of the Minister’s decision on the application.’

…

30    It will be seen from subparagraph (2)(b)(ii) that it is an eligibility requirement that at the time the Minister determines the application, that the person involved should be a permanent resident. In this case, as things presently stand, because Mr Hamade’s visa has been revoked, he is not a permanent resident. It follows that he is not eligible under s 21 for citizenship and that, accordingly, even assuming that the word ‘may’ in s 14(9) of the 1948 Act means ‘must’, it is nevertheless, legally impossible for the Minister to grant Mr Hamade citizenship because he is not eligible, not being resident. This seems to me to be a complete answer to the main thrust of the Applicants’ submissions in this Court. However, one possible answer to that problem, which was explored during the course of argument, was either that this Court should order the Minister to comply with his duty under s 14(9) with retrospective effect from 1981 or, if that was thought to be inappropriate, this Court should declare that the names of the children had, in fact, been included on the certificate.

31    This last step was said to be appropriate because it would be simply a vindication of the situation which ought to have occurred if, on the Applicants’ arguments, the legal duties which they contended existed, had been complied with. It is useful, I think, to examine these related submissions separately.

32    Insofar as a retrospective mandamus or corresponding order under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the AD(JR) Act’) is concerned, there may well be arguments that such a remedy is not known, either at common law or under statute. So far as the common law is concerned, there is very little learning about whether it is possible to grant mandamus having a retrospective effect: but cf. Save Our Suburbs (SOS) NSW Inc v Electoral Commissioner of New South Wales [2002] NSWSC 785; (2002) 55 NSWLR 642 at 657-58 [41]-[44] per Burchett AJ. Likewise, the text of s 16 of the AD(JR) Act does not necessarily indicate any ability of the Court to grant an order that something should be done with retrospective effect.

33    There may be some rather difficult issues involved in a consideration of that question. I think for present purposes, however, they do not arise. In this case, it would be impossible for the Minister to comply with a retrospective order, whether by way of prerogative writ or under the AD(JR) Act. If the Court were to order the Minister to take the step of including the names of the children on the application for citizenship in 1980, or 1981 when the certificate was issued, this is simply not something the Minister can do; because although the powers of the Minister under the Migration Act 1958 (Cth) are broad indeed, they are not so broad as to allow for time travel. The fact is that the certificate which was issued does not have the names upon it and it did not have the names of the children upon it in 1981 when it was issued. There is, subject to the issue of a declaration, nothing that the Minister can do about that state of affairs and, consequently, there is nothing this Court could order the Minister to do about that state of affairs.

34    Perhaps as a backstop against that difficulty, Mr Ahmad, who appeared for the Applicants and put their case with concision and force, submitted that the same result might be achieved by means of a declaration. Here the argument was that, although the Court might not order the Minister to take those steps in 1981, nevertheless, it might declare that the names of the children had been included on the certificate as at that date. Again, however, I do not think that it would be possible for the Court to declare something factually to be the case at a particular time which is simply factually not the case. It is a fact that the names of the children were not on the certificate in 1981. This Court cannot declare something which did not happen to have happened. I would accept that the Court could probably declare, if it accepted every other aspect of Mr Ahmad’s argument, that the names of the children ought to have been included upon the certificate, but that is a different declaration and it would not be enough, for present purposes, so far as the injunction application is concerned.

35    If the only declaration which were made were one that the children ought to have been included on the application form, then that would not be an answer to the Minister’s present contention that the children are not included on the certificate. So I do not accept that either the retrospective mandamus or declaration alternative arguments are sufficient to avoid the impact of the transitional provisions. That is sufficient to dispose of the Applicants’ argument.

36    I would say, however, that I would not have accepted, had it been necessary to consider it, a critical part in that argument. That aspect was the submission that the word ‘may’ in s 14(9) of the Act meant ‘must’. There are, of course, cases where the word ‘may’ has been interpreted to mean ‘must’. In every case, it becomes necessary to examine the particular statutory regime under consideration. Here, it seems to me, the statutory regime of the Act clearly evinced an intention that, in this case, ‘may’ confers a discretion. There are three reasons why that seems to me to be clear.

37    The first is that a consideration of the terms of the legislation shows that the Act evinces a significant intention that the granting of citizenship is an act of high formality. Thus, in the case of adults who are granted citizenship, it’s not only necessary that the Minister must accede to the application, but it is necessary also that the applicant take an oath before an appropriate person. So too, where the position of minors is concerned, the Act seems to me to place considerable emphasis upon the need for a certificate which is appropriately endorsed. So one sees, for example, in ss 14(9), 15(1)(b) and 15(4).

38    Secondly, consideration of the subject matter, purpose and scope of the Act shows that to construe the word ‘may’ as meaning ‘must’ in s 14(9) could have most undesirable consequences. From time to time, applications for citizenship are refused on character grounds and sometimes on national security grounds. It would be surprising if the Minister was ever placed in a situation where he or she was legally obliged to grant citizenship. It would mean, for example, under s 14(9), that the Minister would not be able to refuse to include a child upon a responsible parent’s application where the Minister had reason to believe that the child failed the character test or was a threat to national security. That would be a surprising interpretation of the legislation.

39    Thirdly, although it did not deal directly with the current provision, effectively a very similar argument was rejected by this Court in Andary v Minister for Immigration & Multicultural Affairs [2002] FCA 1380 at [21] to [22] per Kiefel J, as her Honour then was. At [22] her Honour said:

‘In the present case, one assumes that the applicant’s father was not, at the time he took citizenship, the ‘responsible parent’. Whilst it was obviously intended that in many cases children were to automatically acquire the status of a citizen on a grant of it to their parent, the inclusion of their name was a matter of discretion for the Minister. In this statutory context it is not possible to imply an intention that every child was, automatically, to become a citizen. In the applicant’s case his status, as the holder of an entry permit for an indefinite term, was maintained until his mother, as the responsible parent during his minority, obtained citizenship, and the Minister included his name on her certificate, or until he was in a positon to apply for citizenship himself.’

40    Although her Honour was not directly dealing with s 14(9), that reasoning is consistent with the conclusion I otherwise would reach in relation to the statutory provisions. Consequently, I do not accept what seems to me to be a pivotal part of Mr Ahmad’s argument that the word ‘may’ means ‘must’, so that upon satisfying the Court of the other matters in their application, the Applicants were entitled for orders to compel the inclusion of Mr Hamade’s name on the certificate. For those reasons, I am not satisfied that there is a reasonably arguable case that the Applicants would succeed on at trial.

41    It is then useful just to note some discretionary and balance of convenience issues. Even if I had been satisfied that there was a reasonably arguable case for a trial, I would still have refused to grant injunctive relief as a matter of discretion. In this case, Mr Hamade has been well aware of his citizenship difficulties since at least 1991. We know this because he applied for citizenship in 1991 and he has subsequently applied for visas. The time to ventilate the current debate was many years ago and is not the day before he is being deported from the country.

42    That would have been a sufficient reason in itself to refuse the application. I do not consider that the seriousness of the offences in respect of which he was convicted would constitute a reason for refusing relief. I have not set out the nature of those offences which are serious. The reason I do not think their seriousness relates to a relevant discretionary matter is because the nature of the Applicants’ argument, if accepted, will render irrelevant any consideration of his character. The way their argument has been framed, they do not seek to have the Minister exercise any discretion in their favour. Their argument rises as high as a contention that the Minister must declare Mr Hamade to be a citizen with effect from 1981, when his mother was made a citizen. In that situation, the question of the character test, were that argument accepted, would not arise. It seems to me, therefore, that those offences are not relevant to the exercise of my discretion.

43    However, another reason I would have rejected the application is because there is no reason that Mr Hamade cannot pursue this application from Lebanon if he is so advised. As Ms Watson for the Minister very pointedly submitted, this is perhaps unlike a normal deportation case which happens at the end of protection visa proceedings. In this case, because the legal right which is sought to be vindicated by the Applicants is, in fact, a right of citizenship for Mr Hamade, it would be possible for him to pursue these proceedings once he has returned to Lebanon. If he is ultimately successful in them, he will be an Australian citizen and he will have a right to return to this country, as such. Therefore, even if I had thought that the other matters could be addressed, I would nevertheless have refused relief on a balance of convenience basis. Therefore, I refuse the injunction application.

44    I refuse it because I am not satisfied there is a reasonably arguable case, because there has been unexplained delay in the bringing of the application, and because the balance of convenience does not require the issuing of the injunction, since Mr Hamade can pursue these proceedings from overseas. Accordingly, I refuse the application with costs.

Associate:    

Dated:    24 April 2017