Hneidi and Minister for Immigration and Citizenship and Ors
[2008] AATA 923
•16 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 923
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2727
GENERAL ADMINISTRATIVE DIVISION ) Re MAEN SALMAN HNEIDI Applicant
And
MINISTER FOR IMMIGRATION
AND CITIZENSHIPRespondent
And
DALIA HNEIDI
RAMY HNEIDI
TALA HNEIDIJoined Parties
DECISION
Tribunal Senior Member L Hastwell Date16 October 2008
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
IMMIGRATION & CITIZENSHIP – application for citizenship – spouse application – policy guidelines not satisfied – applicant and citizen spouse resident overseas – insufficient connection with Australia – hardship and disadvantage considered – decision affirmed
IMMIGRATION & CITIZENSHIP – application by child under 16 years of age – policy guidelines not satisfied – Convention on the Rights of the Child considered – children’s best interests considered – hardship and disadvantage considered – inconvenience in international travel – decision affirmed
Australian Citizenship Act 1948 s 13(9)
Australian Citizenship Act 2007
Australian Citizenship Instructions
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Wong v Minister for Immigration and Ethic Affairs (1996) 41 ALD 672
Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259
Re Vukaj and Minister for Immigration and Multicultural Affairs [2006] AATA 1075Re Sadiq and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 75
Minister of State for Immigration and Ethnic Affairs v Teoh [1995] 183 CLR 273
Guo v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 1585REASONS FOR DECISION
16 October 2008 Senior Member L Hastwell 1. Dr Maen Hneidi has Syrian and Lebanese citizenship. He is currently residing in Beirut.
2. He has made application for Australian citizenship for himself and for three of his four infant children. One of his children was born in Australia and already holds citizenship.
3. He and the other three applicant children already have Australian permanent residence visas and Dr Hneidi holds a resident return visa which will enable him to come to Australia, leave the country and then return. That was granted on 13 March 2007.
4. Dr Hneidi is married to Karina Hneidi who holds Australian citizenship by descent. His application is based on him being the spouse of an Australian citizen.
5. On 1 June 2007, a decision was made by a delegate of the Minister to refuse Dr Hneidi’s application. As the children had been joined to his application then by implication, the children’s application was also rejected. The delegate did not specifically provide reasons for rejecting the applications with respect to the children. Dr Hneidi seeks a review of the delegate’s decision both with respect to his application and that of his children.
6. The Tribunal is satisfied that it has jurisdiction to consider a review of the delegate’s decision with respect to the children as well as Dr Hneidi as that decision, by implication, rejected the children’s application. The Tribunal has this power if the children are joined as parties to the application before the Tribunal.
7. At the hearing of the review application, an order was made with the consent of the parties under s 30(1A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) joining the three children as separate parties to the application. It was agreed that their applications were not dependent on the outcome of their father’s application and should be separately considered on their own merits.
issues
8. The issues before the Tribunal are:
·should the discretion to grant Australian citizenship be exercised in this case to grant citizenship to Dr Hneidi and/or to his three children;
·what is the legislative and policy background; and
·to what extent can the Tribunal go outside the Ministerial Guidelines (the Guidelines) in exercising its discretion?
legislative and policy background
9. The Australian Citizenship Act 2007 (the 2007 Act) came into operation on 1 July 2007. As Dr Hneidi lodged his application for review prior to the 2007 Act coming into operation, then this case stands to be considered under the provisions of the Australian Citizenship Act 1948 (the 1948 Act).
10. Section 13(9) of the 1948 Act provides:
“(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;
(b) who:
(i) has attained the age of 18 years; and
(ii) has made the application before attaining that age;
(c)who is a permanent resident and is the spouse, widow or widower of an Australian citizen; or
(d) who:
(i) has attained the age of 16 years; and
(ii)is a permanent resident and the spouse of a person who has been granted a certificate of Australian citizenship but has not yet acquired Australian citizenship by virtue of the operation of section 15.”
11. The Australian Citizenship Instructions (the Instructions) have been formulated and set out the policy that is to be applied by the decision-maker in determining applications under the 1948 Act. The Tribunal must have regard to these Instructions, unless there is good reason not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
12. Chapter 4.5 of the Instructions sets out the criteria which applicants for citizenship are “usually required” to meet. These include:
“4.5 SPOUSES, WIDOWS & WIDOWERS OF AUSTRALIAN CITIZENS s13(9)(c)
4.5.1Section 13(9)(c) gives a discretion to grant a certificate of Australian citizenship to a permanent resident who is the legal spouse, widow or widower of an Australian citizen.
4.5.2 Applicants are usually required to meet all of the following requirements:
· the applicant is a permanent resident
· the parties are living together as husband and wife unless:
- the Australian citizen spouse has died; in this case, the couple must have been living together at the time the spouse died or
- the applicant and the Australian spouse are estranged because of domestic violence.
Note: If the parties are not living together but claim that the marriage exists, the case should be decided by an officer at APS6 level or higher.
· the applicant is of good character (see chapter 5)
· if the applicant is overseas, they intend travelling to Australia to live with the Australian citizen spouse
· 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 (see 4.2.18 – 4.2.20)
· the applicant has a basic knowledge of the English language and an adequate knowledge of the responsibilities and privileges of citizenship, unless:
- the Australian citizen spouse has fulfilled these requirements and it is evident that there will be on-going support for the applicant spouse in these matters or
- the applicant is estranged from the Australian citizen spouse because of domestic violence and it is evident that there will be on-going support for the applicant from an Australian citizen friend or relative who has fulfilled these requirements.
Note: If the applicant does not have this knowledge, the responsibilities and privileges of Australian citizenship (see 4.2.14– 4.2.17) should be explained during the citizenship interview. If necessary, this should be done through an interpreter.
· the applicant has been present in Australia as a permanent resident for at least 2 years in the five years immediately before the application, at least 12 months of which must have been within the 2 years immediately prior to that date unless:
- the applicant has been a permanent resident in Australia continuously for the 12 months immediately prior to application and would otherwise suffer significant hardship or disadvantage (see 4.3.33 for guidance on hardship or disadvantage).
4.5.3 Spouses of Australian citizens who live overseas with their Australian citizen spouse, and are permanent residents of Australia may have difficulty meeting the residence requirements for citizenship. 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.
4.5.4Spouses of Australian citizens would usually be eligible for grant of citizenship if they:
· are permanent residents of Australia
· live or have lived overseas with their Australian citizen spouse because of the Australian citizen’s work; and
· would have been eligible for citizenship if they were residing in Australia during that period.
4.5.5The occupation of the Australian citizen spouse is not relevant. Evidence, however, of the Australian citizen’s spouse overseas employment is required, such as, a letter from the employer, including a statement that the non citizen spouse is accompanying them.”
13. The application for the children to be granted citizenship are to be assessed under s 13(9(a)) of the 1948 Act. All three children are under the age of 16 years.
14. Chapter 4.4 of the Instructions states:
”4.4.3 As a matter of policy, applications under s13(9)(a) and s13(9)(b) will usually be approved if:
· the applicant is at least 16 years old and is the natural child of a person who has been granted a certificate of Australian citizenship on the basis of being the spouse of an Australian citizen or
· the applicant is at least 16 years old and meets the criteria in 4.2;
· the applicant has not turned 16 and, although their parents are not Australian citizens, the applicant would otherwise suffer hardship or disadvantage (see 4.3.33);
· the applicant has been adopted overseas and satisfies the requirements set out in 4.4.12.
4.4.4 In considering an application under s13(9), applications are not usually approved unless all of the following are satisfied:
· the child is a ‘permanent resident’ (see 1.4) or meets the requirements for migration to, or permanent residence in, Australia and
·the child has a ‘responsible parent’ (see 1.6) who is an Australian citizen and who consents to the application (Note: if the child is a ward of the Minister under the Immigration (Guardianship of Children) Act 1946 (eg an unaccompanied humanitarian minor (UHM )or certain cases of overseas adoption), the Minister’s parental rights are exclusive and the case should be referred to Family Section, National Office or the State/Territory office Settlement area or UHM Coordinator for advice.) and
· if the child is under 16 years old, they are living with that responsible parent. If the applicant is in the care of another person (eg brother, aunt or uncle), the case is to be referred to a delegate of at least APS 6 level. (Note: this would include an applicant who is a “non-ward” under the UHM program - see 1.6.12)
4.4.5Delegates are reminded that they must consider the full circumstances of the case. For example, it may be appropriate to approve a case outside policy if the child (other than an adopted child) has a responsible parent who is an Australian citizen and there are exceptional circumstances which would make it unreasonable for the applicant to apply for a permanent visa.
Note: There may be some cases in which a New Zealand citizen family has made the decision not to move to Australia as a family unit, and, for example, the parent/s arrived in Australia prior to 26 February 2001 (therefore considered to be permanent residents for citizenship purposes), but the child/ren arrived in Australia after 26 February 2001 (therefore are not permanent residents) see 1.4.2 for details on permanent residence for New Zealand citizens). There is no separate policy relating to New Zealand citizens in such circumstances. However, consideration should be given to the policy guidelines set out at 4.4.4 and 4.4.5.”
background facts
15. There was no dispute between the parties about most of the relevant factual matters.
16. Dr Hneidi was born in Moscow on 27 February 1966 to Syrian parents. He holds Lebanese and Syrian citizenship. He has been living and working in Lebanon since 1997. Prior to that he was studying and working in Syria and France. He is a Nephrologist by occupation and runs dialysis clinics in Lebanon.
17. Lebanon is a politically unpredictable country and the safety and security of those travelling within it cannot always be guaranteed.
18. His wife, Karina Hneidi, who was born in and grew up in Lebanon, is an Australian citizen by descent and a Lebanese citizen. Her mother is an Australian citizen by birth. She was born in Australia to migrant Lebanese parents. She returned to reside in Lebanon in 1966 and Karina was born in Beirut and has resided there throughout her life. She was granted Australian citizenship in 1971 by the Australian Embassy in London.
19. Dr Hneidi is of good character. He speaks the English language fluently.
20. A number of members of Karina’s family reside in Australia. Her grandmother, an aunt and uncle, eight cousins and a sister reside here. She remains in contact with all of them.
21. Dr Hneidi and Karina were married in Beirut on 25 August 1995. They continue to reside together as man and wife.
22. There are four children of their marriage, namely Ramy, who was born on 10 September 1996, Dalia who was born on 22 October 1997, Maya who was born on 7 November 2001 and Tala who was born on 2 August 2005.
23. Maya was born when Karina Hneidi was in Australia in 2001 and so Maya is already an Australian citizen. The other three children were not born in Australia. They all hold Australian permanent residency. Ramy and Dalia were granted subclass 155 resident return visas on 14 September 2006 and Tala was granted a subclass 101 child visa on 8 March 2007.
24. Dr Hneidi applied for a subclass 100 spouse visa for himself and the two oldest children in 2001. That application was granted and he thereby became a permanent Australian resident on 27 September 2001. At the time he was working as a medical specialist at the Mount Lebanon Hospital in Beirut.
25. He came to Australia with his wife and two children in October 2001. He stayed for 20 days and then returned to Lebanon when his father was taken ill unexpectedly. On that occasion he and his family had planned to stay for up to a year with a view to moving to Australia permanently. Dr Hneidi had given notice to his employer.
26. His wife and children returned to Lebanon to join him shortly thereafter.
27. He has not returned to Australia since 2001.
28. Karina Hneidi has visited Australia on a number of occasions over the years. Migration records show that she was in Australia for one month in 1982, for a number of weeks in 1986, for two weeks in 1992, for two months in 2001, two months in 2006 and most recently for three weeks in 2007. She gave evidence that her mother left her in Australia for a period in excess of two years when she was a child, but this is not verified by current migration records.
29. In July 2006 hostilities broke out in Lebanon between the Hezbollah and Israeli forces. This conflict lasted for approximately one month. Both military personnel and civilians were killed and many civilians, including the Hneidi family, were forced to flee from Lebanon.
30. The Australian Embassy could only offer assistance to Australian citizens who were resident in Lebanon during the evacuation and so only Karina and Maya could have received assistance from the Embassy in Beirut. Evacuation was easier for an Australian citizen as they could be evacuated directly from Beirut airport with the assistance of the Embassy. As Karina was not willing to be separated from her family, she left with her husband and children via a much more dangerous route which involved travelling by road to Syria and then flying from Syria via Bahrain and Hong Kong to Australia.
31. When Karina reached Hong Kong the three children who did not hold Australian citizenship were not allowed entry to Hong Kong, whereas Karina and Maya could have entered Hong Kong as Australian citizens. Karina had to stay in transit with all four children for many hours as she could not leave the other three children at the airport.
32. She arrived in Australia with the four children in July 2006 and stayed in Adelaide with her relatives for approximately two months. She returned to Lebanon once it was safe for her and the children to do so. Her husband travelled as far as Syria and once the family was safely en route to Australia he returned to Beirut.
33. On 13 March 2007, Dr Hneidi was granted a subclass 155 resident return visa. He is able to live and work in Australia if he so wishes and he has a right of multiple re-entry under that visa.
34. Dr Hneidi is one of a small number of specialists in his particular field in Lebanon. He also has a sub-specialty in treating a condition known as hypochollostroema and he is, on his own account, one of the only doctors in the world treating children with this condition.
35. Dr Hneidi established a business in Lebanon known as Hemopack in 2003. The business was established to satisfy an increasing demand for hemodialysis in Lebanon. That business operates a number of clinics. Dr Hneidi has partners in that business.
36. In mid 2005, Dr Hneidi and his partners commenced negotiations with a German company to sell their interest in Hemopack. Negotiations were almost complete by mid 2006 and a price had been negotiated when the outbreak of hostilities in Lebanon in June 2006 put an end to the negotiations. Foreign investors are reluctant to invest in a country that is still not considered to be politically stable. Negotiations are currently on hold.
37. Dr Hneidi’s father is now in his mid 80s. He is in poor health. He resides near to Dr Hneidi and his wife and they visit him regularly. It would not be possible for him to travel to Australia because of his age and poor health.
38. Karina Hneidi’s parents reside in Lebanon and are in quite good health.
39. Dr Hneidi is currently owed a large sum of money by the Lebanese Government. It is not certain when that will be paid to him as payment appears to be dependant on the country becoming more politically stable. The Government has frozen certain payments at present. Dr Hneidi will not leave the country until he has received payment from the Government.
40. Dr Hneidi would prefer to sell his business interests in Lebanon before travelling to reside permanently in Australia.
41. Dr Hneidi and his wife and children are Druze Christians. It is a minority religion in Lebanon, where the majority are Sunni and Shiite Muslims. His children attend an International American school in Beirut.
42. Dr and Mrs Hneidi opened a bank account at the Westpac Bank at Glenside and in November 2007 they transferred $100,000 to that account. There has been no further activity on that account between that date and the date of the review hearing.
43. Dr and Mrs Hneidi enrolled their school age children to commence school at Linden Park Primary School in Adelaide in 2008. At this point, they have not moved to Australia to enable the children to take up that enrolment.
other matters raised in the evidence
44. The documents filed under s 37 of the AAT Act were received into evidence as were a number of other exhibits. Dr Hneidi and his wife gave evidence by telephone from Beirut. Affaf Basheer, Mrs Hneidi’s aunt who resides in Adelaide, also gave evidence.
45. Dr Hneidi described the evacuation from Beirut in 2006 as being a dangerous trip for him and the family. They had to drive to Syria along with hundreds of other families who were evacuating. Once he put his family on the plane he returned to Beirut because his patients needed him to be there. The separation from his family during the 2006 conflict was traumatic for the family. He is very concerned that he provides his children with the best possible future and he sees Australia as ultimately being where he and his family should reside.
46. He could give no certain response as to when he was planning to come to Australia. He was adamant that he will not be separated from his family again. He is devoted to his elderly father and he was very frank in his evidence that he will not leave Lebanon while his father is still alive.
47. He also feels a deep sense of commitment to his patients and his medical practice. On the other hand, he is concerned to provide his children with the best and most secure future and he believes that future will ultimately be in Australia.
48. He will need to do some bridging work in Australia to be able to practise his profession here. However, he is confident that will not present a problem for him when he decides to come. He said that it will be at least 2009 or 2010 before he can move the family to Australia and even then it depends on whether his father is still alive. He maintains contact with the German company that are interested in purchasing his business interests.
49. War has been a fact of life for him and he described himself as “clearly and gradually moving to raise his children in a stable and good atmosphere” which he sees as ultimately being in Australia. He said that his wife relates strongly to being Australian and she is keen to make the move.
50. When he comes to Australia, he plans to work at a hospital until he is able to work once more as a medical specialist. It will take one to two years to establish himself here in terms of being able to practice his speciality.
51. He will not leave Lebanon until he is paid the large sum of money, approximately US$1 million, which he is owed by the Lebanese Government. He would also want to sell his business interests in Lebanon before leaving.
52. He is concerned about discrimination against his children because they are Christians. He told the Tribunal that there is increasing discrimination against the minority religions in Lebanon.
53. The statements of Dr Hneidi were received as Exhibits A5 and A6.
additional matters raised by karina hneidi
54. Mrs Hneidi gave evidence by telephone. She had also sworn a statement which was received by the Tribunal as Exhibit A4. She sees Australia as being where she wants to live and she has a number of relatives here. She has had more frequent visits to Australia than her husband and maintains close contact with her Australian relatives by email, telephone and periodic visits.
55. The trip to Australia in 2001 was intended to be permanent, but the illness of her father-in-law meant that the family returned to Lebanon.
56. Her statement (Exhibit A4) describes the difficulties she faced trying to evacuate her children who were not Australian citizens from Lebanon in 2006. Paragraphs 39 to 48 describe the dilemmas she was faced with in 2006 when the non Australian citizen members of her family were unable to travel with the same ease as she and Maya could as Australian citizens. She believes that the grant of citizenship will add a level of protection for her family that is not accorded to those with only permanent residence.
57. In her statement, she elaborates on the tense political situation in Lebanon and emphasises the genuineness of the family’s plans to move permanently to Australia as soon as the political and family situation in Lebanon enables them to do so.
other evidence
58. Mrs Hneidi’s maternal aunt, who has resided in Australia since 1950 when her Lebanese parents migrated to Australia, gave evidence. She confirmed the close links between her family and their relatives in Lebanon, including her niece Karina and her family. She is in regular contact with her family in Lebanon, including Karina and her family by phone and email. Her son has visited their relatives in Lebanon twice and reported being fearful of the jets that would sometimes fly over head and bomb infrastructure.
59. She was not aware that the Hneidi family had any firm plan to live in Australia when they came out in 2001.
60. She is aware that Dr Hneidi and Karina have considered coming to Australia. She commented that Dr Hneidi is very committed to his patients and to his own family in Lebanon.
61. Some background information about Lebanon and the 2006 conflict were received as exhibits. These included two US Department of State Reports (Exhibits A1 and A2) and BBC and ABC news articles on the evacuation from Lebanon during this conflict (Exhibit A3).
discussion of the evidence
62. Dr Hneidi and his wife were honest witnesses. At no stage did he attempt to minimise the complexity he faced in moving his family to Australia. The major motivation behind the current application appears to be the family’s experience in mid 2006 when the Australian Embassy could only offer assistance to the Australian citizen members of the family in evacuating them from Lebanon. They also discovered that travel was easier on that occasion as Australian citizens did not require visas in Hong Kong when the family were in transit.
63. It appears that this family hope to come to Australia to live, but they have not yet established any clear time line for that move. Dr Hneidi has significant business and financial ties to Lebanese interests and he is also devoted to his elderly father and will not leave Lebanon until he passes away. The timing of their move to Australia remains entirely uncertain. It may be within the next two to five years, but if it does not occur within that time then it may never occur if the children reach an age where they are more difficult to move from friends and peer groups.
64. Karina Hneidi relates strongly to her Australian heritage and would happily settle in Australia as soon as possible, but she and her husband and children are a close family unit and will not be separated. Dr Hneidi will determine if they move and until then it is likely his wife will continue to visit Australia from time to time. Everything depends on Dr Hneidi’s capacity and desire to make the move to Australia. Even in his own evidence, he could not make an unreserved commitment about the family’s future.
65. The Tribunal is satisfied that the enrolments at Linden Park Primary School were not made in anticipation of any genuine expectation of being in Australia in 2008.
66. The deposit of $100,000 into a bank account in Australia was made with no immediate plans to come to Australia and was possibly done to create a financial link with Australia for the purposes of this application or to protect funds and remove them from Lebanon which can be a volatile country.
67. If this family do come to Australia, then they will undoubtedly become valuable members of the community. Dr Hneidi is likely to also make a significant contribution to the medical profession. They will ultimately be welcomed by the Australian community when and if they do decide to come.
contentions
68. The respondent maintains that although s 13(9) of the 1948 Act sets out an unfettered discretion to grant citizenship to a spouse of an Australian citizen or to a child, the Tribunal must have regard to the Guidelines contained in the Instructions. They contend that Dr Hneidi does not satisfy the various requirements set out in the Instructions, nor do the children. In the case of the children, hardship or disadvantage could have been considered under the Guidelines if they have not turned 16 years of age. The respondent argues that there is no hardship or disadvantage in this case to the children.
69. The respondent contends that there is no evidence that Dr Hneidi is going to reside in Australia at any definite point in the future and he has no links of significance with Australia other than the fact that he is married to an Australian citizen by descent. He does not satisfy either the residency requirement or the reduced residency requirement as set out in the Instructions. He will not suffer any significant hardship if denied citizenship at this point in time as he has a right of re-entry to Australia in any event.
70. The applicant, on the other hand, argues that the Tribunal should depart from the Instructions. Dr Hneidi is in a particularly difficult and dangerous situation. If war breaks out again, he and the children who are not Australian citizens are disadvantaged in terms of being able to safely and quickly leave the country. He belongs to a unified family who have close and ongoing contact with Australian relatives.
71. The applicant contends that even if Dr Hneidi’s application is unsuccessful, then the children’s applications must be considered separately. This position is accepted by the respondent.
consideration of dr hneidi’s application
72. Dr Hneidi’s application is based on his status as a spouse of an Australian citizen. It stands to be considered under s 13(9)(c) of the 1948 Act.
73. That provision is expressed in simple terms and no criteria are set out in the 1948 Act to govern exercise of that discretion.
74. The Instructions at chapter 4.5.2 set out the factors that the policy-maker considers should “usually” be met before citizenship is granted under s 13(9)(c).
75. The first requirement is whether the applicant, if granted citizenship, is “likely” to reside or continue to reside or maintain a close and continuing association with Australia.
76. Dr Hneidi will probably at some stage in the next few years come to Australia. However, he cannot put any definite date on his entry as he needs to reach a point where he feels free to leave his patients, his remaining family in Lebanon and his business interests. At the moment his life is inextricably linked with his family and his medical practice in Lebanon. His major association is with his own country. His association with Australia is through his wife. He has only visited Australia once, and has not exercised his right to return and live in this country if he so wishes. His association with Australia as a culture and a nation is not close.
77. He visited Australia in 2001. The Tribunal accepts that the family on that occasion intended to explore the possibility of staying on a long-term basis, but it appears they were not prepared for a permanent move. He had given notice to his employer in Lebanon and commenced the process of ascertaining how he would establish himself professionally in Australia. His father’s sudden illness resulted in the family moving quickly back to Lebanon and Dr Hneidi has not returned to Australia since, although his wife and children have returned on a number of occasions. Since that initial trip, he has developed significant and new business interests in Lebanon that add to the difficulty of him coming to Australia.
78. Dr Hneidi’s business interests and his cultural and emotional associations are in Europe and the Middle East and not in Australia. His wife has a stronger link with Australia. Dr Hneidi has a sense of Australia being a country where he can perhaps provide the best and most secure life for his children.
79. His only financial connection with Australia is the deposit in the bank account in Adelaide. There is no clear explanation for this deposit, given his stated lack of any plan to come to Australia at this point in time. He can remove these funds at any time.
80. Dr Hneidi does not satisfy the residency requirements set out in chapter 4.5.2 of the Instructions. He has not been in Australia at all in the last five years, so he does not satisfy either the extended or the reduced residency requirement.
81. Chapter 4.5.7 of the Instructions recognises that spouses of Australian citizens who live overseas and are permanent residents may have difficulty meeting the residency requirement. They point out that the primary policy objective underpinning the residency requirement is the development and maintenance of close and continuing ties with Australia. It states that 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.
82. The applicant’s argument is that despite Dr Hneidi’s inability to satisfy the policy set out in the Instructions in any significant way, and despite his failure to satisfy at all the residency requirements, he should be granted citizenship. The underlying theme being that he does not receive the same protection from Australian Embassy representatives as his Australian wife, should there be a further outbreak of hostilities in Lebanon and he is singled out from the Australian citizen members of his family when travelling internationally, and in particular when attempting to evacuate Lebanon.
83. The Tribunal does not accept that this argument holds sufficient weight that the usual policy should be ignored. Dr Hneidi already holds dual citizenship and can evacuate through the Syrian border if required, which is 100 kilometres from him. Although the conflict of 2006 was distressing for those concerned, it was a one-off situation and it is speculation to suggest it will happen again in the foreseeable future. Lebanon is not a country at war and the Lebanese Government also has international obligations to protect its own citizens in times of conflict.
84. At the moment, he has a right of multiple re-entry to Australia until 2011 as part of his current visa and so there is no inhibition to him coming to Australia prior to that date. There may be more difficulty or inconvenience in travel because of his lack of Australian citizenship status. It is a difficulty that thousands of Lebanese citizens faced when the 2006 conflict broke out. The Tribunal does not accept that the difficulty faced by the spouse of an Australian citizen in this case is so significant or exeptional that policy should be ignored.
85. In the matter of Wong v Minister for Immigration and Ethic Affairs (1996) 41 ALD 672, an argument about difficulty with international travel was raised in the context of a similar application under s 13(9)(c) of the 1948 Act. The Hon Justice Purvis commented in that case as follows at paragraph 31:
… there was no evidence before the tribunal that the applicant suffers any discrimination when travelling with his family overseas as a result of the difference in their nationalities. Even if such evidence had been brought, it cannot be said that having to wait longer at an overseas airport or having to apply for a visa amounts to anything more than inconvenience. In regard to the submission that the applicant would not receive the same protection from Australian consular representatives as his family should he face difficulties overseas, even be it that there was no evidence to this effect, the tribunal is not satisfied that this alone would amount to significant hardship or disadvantage to the applicant. …”
86. In the matters of Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 and Re Vukaj and Minister for Immigration and Multicultural Affairs [2006] AATA 1075, citizenship applications were granted even though the Guidelines set out in the Instructions were not satisfied. However, those cases are distinguishable from this case. In both those cases, the applicant was living in Australia at the time of the application and had much more substantial contact and association with Australia than Dr Hneidi. In each case, they were married to resident Australian citizens and had significant ongoing connections with Australia.
87. Residence and connection with Australia are important considerations. In the matter of Re Sadiq and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 75, Senior Member Fice commented on that aspect of the Instructions as follows:
“… the essential themes underlying the grant of Australian citizenship throughout the Act and the ACIs are residence and a close continuing association with Australia. While there are modifications to the period of residence required for the ordinary grant of Australian citizenship, residence and presence in Australia are of paramount importance when considering whether to exercise a discretion under s 13(9)(c).”
88. It is accepted that policy statements are not binding on the Tribunal, but must be brought to account and given appropriate weight. In the case of Re Dainty, Davies J commented at page 266 as follows:
“I accept that, in the exercise of discretions under the Australian Citizenship Act, the Tribunal ought generally to apply guidelines or policies which have been established by the Minister of State for Immigration and Ethnic Affairs. Such policies can only be adopted by the Minister. He has the experience and advice and the power to formulate such policies and he is able to take responsibility in Parliament should the policies be found wanting.
But to say that is not say that the Tribunal ought to treat policy as more than policy. Policy is not a legislative prescription and, though in many cases it will be appropriate to apply policy in all or almost every case, there are circumstances where it is not appropriate to decide a matter merely by reference to a policy which has been laid down”
89. In Re Vukaj the Tribunal commented as follows:
“44. The policy underlying a grant of citizenship is evident in the Instructions. The criteria are designed to ensure that an individual can establish a genuine and close connection with Australia, a commitment to Australia and be of appropriate character to become a citizen with all the rights and responsibilities associated with that grant of citizenship. The Instructions endeavour to provide guidance to the decision-maker in determining whether that link is established. The use of the word "usually" in the Instructions reinforces the Tribunal's view that these factors are a guide only.”
90. In the Tribunal’s view, the present case is distinguishable from that of Re Vukaj and Re Dainty. The flaw in the argument that Dr Hneidi should become an Australian citizen (and the Tribunal has no doubt that he would prove to be an exemplary citizen) lies in the complete lack of certainty about his future plans and his failure to satisfy any of the residency requirements, along with his lack of personal and genuine connection with Australia. It appears likely that the current application has been motivated by a sense of fear and insecurity experienced by this family in 2006 when they discovered that the Australian Embassy would not provide the same support to the non Australian citizen members of the family as it would to the Australian citizen members of the family.
91. The Tribunal is aware that there are many Australian citizens in Lebanon and that the evacuation of 2006 posed some significant problems for the Australian Embassy whose resources were stretched. Even if Dr Hneidi was an Australian citizen in the event of further hostilities breaking out in his country, there is no certainty that his path of evacuation from the country would necessarily be much easier.
92. The Tribunal cannot see that there is a sufficient basis in this case to depart from the Instructions. Dr Hneidi has had the opportunity for some time to come to Australia and live and work in Australia. It will undoubtedly be to Australia’s advantage if he does so. However, his inability to extricate himself from Lebanon, despite the expressed wish to do so over many years, must cast some doubt over when and if he will ever come to Australia. He has had the opportunity to increase his association and connection with Australia for many years, but has not availed himself of that opportunity.
93. It is not appropriate that citizenship be granted merely as a safety net for those who are concerned to find the safest route out of their country in the event of warfare.
94. In the circumstances, the Tribunal affirms the delegate’s decision with respect to Dr Hneidi’s application.
the children’s applications
95. The application for the three children stands to be considered under s 13(9)(a) of the 1948 Act. Under that provision, the Minister has discretion to grant citizenship to a minor. That provision provides no guidance with respect to the exercise of this discretion.
96. The Instructions set out the relevant policy considerations. Those provisions are set out in chapter 4.4 which deals with grants of citizenship to children in their own right.
97. The Instructions differentiate between children under and over the age of 16 years.
98. The Instructions indicate that it is only in certain specific circumstances that a child applicant under 16 years of age should be granted citizenship, namely if they are an overseas adoption case or if the parents are not Australian citizens and the child would otherwise suffer hardship or disadvantage and they also satisfy certain other criteria including the extended or reduced residency criteria. The children in this case do not come within that policy exception and so based on the Instructions they would not usually be considered for citizenship.
99. The respondent says that they would need to satisfy all the requirements of chapters 4.4.3 and 4.4.4 before they can be granted citizenship and this also includes a requirement that the children meet the criteria in chapter 4.2 of the Instructions which include the extended or reduced residency requirement.
100. The Tribunal then invited the parties to make further written submissions with respect to the children’s applications and, in particular, to address the issue of the best interests of the children in determining their applications due to the fact that Australia is a signatory to the United Nations Convention on the Rights of the Child.
101. Article 3 of that Convention provides as follows:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, Courts of Law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
102. The Convention is expressed in Article 2 to apply “to each child within the State Party’s jurisdiction”.
103. The applicant submitted that the Tribunal must have regard to whether the children in this case will suffer hardship or disadvantage because of what the applicant argues is the Tribunal’s obligation to always consider the best interests of children when considering any applications relating to children.
104. The respondent's position is that the Convention has no application in this case as the children are not within the jurisdiction in accordance with Article 2 of the Convention.
105. These children are currently within the jurisdiction of this Tribunal in one sense in that the Tribunal has the jurisdiction to consider applications by these children. In the broader sense they are not in Australia, they are foreign nationals and can only come within the jurisdiction of any Australian tribunal or court by virtue of special legislation that gives them standing to apply to a particular jurisdiction.
106. The applicant, in arguing that the Tribunal must have regard to the Convention, relies on the authority of Minister of State for Immigration and Ethnic Affairs v Teoh [1995] 183 CLR 273 and refers to the judgement of Mason CJ and Deane J where they commented at paragraph 34 as follows:
“… ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act(17), particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention(18) and treat the best interests of the children as "a primary consideration". It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it.”
107. In a more recent case in the Federal Court of Guo v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 1585, Justice Wilcox, in accepting the submission that the best interests of children should be considered in an extension of time application, commented as follows:
“55. Consistently with the view I adopted in Browne, I do not accept that a decision about an application for extension of time cannot properly be regarded as an `action concerning children' within the meaning of Article 3.1 of the Convention. A decision about extension of time is one step removed from a substantive decision about the grant of a visa. … It seems unlikely that the drafters of the Convention intended the phrase `actions concerning children' to be interpreted in a narrow or pedantic sense. Rather, it is likely that the phrase was intended to be read in a generous and practical way, to include the myriad of official decisions which impact upon the welfare of children, whether in general or in particular.”
108. The children in that case were physically in Australia at the time of the application. However, his view accords with the view of this Tribunal that an unduly restrictive interpretation of Article 3 is not justified. There is nothing in Article 3 that suggest that the word “children” should be confined to children physically in Australia. It focuses on children that legitimately come within the jurisdiction by whatever means. The Tribunal considers the same considerations should apply in interpreting Article 2. The Tribunal is satisfied that it must give consideration to the children’s best interests in this case as a primary consideration.
109. Nevertheless, this does not elevate the best interests of the children in this case to a principle of law that will override other legal and policy considerations that this Tribunal must also have regard to.
110. An analysis of Teoh leads to the conclusion that the Court was not saying that the Convention becomes domestic law by virtue of the ratification of the Convention and the Court were unanimous in their decision that the delegate was not bound to comply with Article 3 as though it were a rule of domestic law, but rather that the Convention raised a legitimate expectation that the decision-maker will ensure that procedural fairness is accorded to the parties and they are given the opportunity to raise with the decision-maker issues that arise out of the Convention, which in this case is the best interests of these children.
111. There are a number of considerations which must be taken into account by the Tribunal when reviewing the children’s application and the Instructions and underlying policy cannot be disregarded.
what is in the best interests of these children?
112. Submissions have been put by the applicant that the best interests of these children lie in coming to Australia with their family and in being able to travel as a single unit and in the safest way when travelling internationally. Lebanon is a more volatile country than Australia and the applicant argues that anything that will assist this family to move out of Lebanon and to Australia is in the children’s best interests.
113. The Tribunal has considered that argument carefully. It is really a value judgement to suggest that these children will be better off coming to live in Australia. It involves leaving their country of birth and a very different cultural system. They may be safer here in that the potential for armed conflict is less, but there will be other difficulties of adjustment, language and cultural differences that they will face. The best interests of these children lie in remaining in their current family unit and in the care of their parents. Their parents are intelligent people and they are choosing to continue to reside in Lebanon. It is a close and supportive unit and the parents and children do not wish to be separated. Their parents consider that the children's best interests are currently served by continuing to reside in Lebanon. These children can come to Australia at any time and reside here as they have visas to entitle them to do so, and the fact that they have not yet done so indicates that their parents are satisfied that their current best interests are served by continuing to reside with their parents in Beirut.
114. The fact of inconvenience in international travel in some instances does not go to the issue of serious disadvantage or hardship to these children. The children did safely exit Lebanon during the disturbance of 2006. Because it was a hasty exit it was more difficult as no forward planning could take place, but in normal circumstances and with some forward planning, they can travel internationally with ease.
115. It is to be noted that chapter 4.3.33 of the Instructions gives some definition of hardship and disadvantage. It can be considered a hardship or disadvantage if an applicant was excluded from travelling internationally because he or she cannot obtain a passport or because he or she was excluded from travelling with immediate Australian family. The children are not excluded from travelling internationally or from travelling with their family by virtue of the fact that they do not hold Australian citizenship.
116. Having considered the best interests of the children and having considered the policy directions and the underlying policy behind the grant of citizenship to children under the age of 16 years, the Tribunal considers that there is no compelling reason to go behind the policy set out in the Instructions.
117. In the circumstances the Tribunal affirms the decision under review with respect to the applications by all three children.
I certify that the 116 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Hastwell
Signed: .......J Coulthard..............................................
AssociateDates of Hearing 12-13 March 2008, 25 March 2008
Date of Decision 16 October 2008
Advocate for the Applicant Ms J McGrath
Solicitors for the Applicant McDonald, Steed, McGrath
Advocate for the Respondent Ms D Forrester
Solicitor for the Respondent AGS
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