Case: Dainty and Minister for Immigration and Ethnic Affairs, Re (1987) 6 AAR 259
Outcome: discussed
The Tribunal member referred to clause 4.5.3 and noted that the primary policy objective underpinning the residency requirement was the development and maintenance of close and continuing ties with Australia. The Tribunal member noted the argument that the first applicant did not receive the same protection from Australian Embassy representatives as his Australian wife. The Tribunal member said that she did not accept that "this argument holds sufficient weight that the usual policy should be ignored". She said that she did not accept that the difficulty faced by the spouse of an Australian citizen in this case was "so significant or exceptional that policy should be ignored". She said: "In the matters of Re Dainty v Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 and Re Vukaj v 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." 31 The Tribunal member noted that policy statements were not binding on the Tribunal "but must be brought to account and given appropriate weight". The Tribunal member said that she could not see a sufficient basis to depart from the Instructions. 32 The Tribunal member then turned to consider the application by the second, third and fourth applicants. She noted the relevant provisions of the Instructions and said that, based on the Instructions, the children would not usually be considered for citizenship. The Tribunal member considered whether she needed to address the issue of the best interests of the children by reason of the fact that Australia is a signatory to the United Nations Convention on the Rights of the Child and Article 3 refers to the "best interests of the child". She referred to various authorities and concluded that she must give consideration to the children's best interests in this case as a primary consideration. She considered the submission that the best interests of the 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. The Tribunal member said that she had considered that argument carefully. She said it was really a value judgment to suggest that the children would be better off coming to live in Australia. She noted that the children could come to Australia at any time and reside here as they had visas which entitled them to do so, and the fact that they have not yet done so indicated that their parents were satisfied that their current best interests were served by continuing to reside with them in Beirut. The Tribunal member concluded by saying: "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 sixteen years, the Tribunal considers that there is no compelling reason to go behind the policy set out in the Instructions." Questions of law and grounds of appeal 33 The amended notice of appeal identifies two questions of law and three grounds of appeal. The first question of law and the ground of appeal related to it are as follows: Question of law: "Whether the Tribunal, upon a review of the decision by the Minister to not grant a certificate of Australian citizenship under subs. 13(9) of the Act, impermissibly fetters the exercise of its discretion by applying the policy known as the 'Australian citizenship instructions' unless there are cogent reasons not to do so." Ground of appeal: "The Tribunal failed to exercise its own independent judgment in respect of its decision, and give proper, genuine and realistic consideration to the merits of the applicants' cases, in that it: (a) held that it was required to apply the policy known as the 'Australian citizenship instructions' unless there were cogent reasons not to do so; (b) applied the policy in making the decision; and (c) failed to hold that as the policy had not been adopted or approved by the Minister and had not been exposed to parliamentary scrutiny, the existence of the policy was merely a relevant consideration to take into account in the exercise of the discretion under subs. 13(9) of the Act." 34 The second question of law and the grounds of appeal related to it are as follows: Question of law: "Whether, on the proper construction of subs. 13(9) of the Act, the Minister, in determining whether to grant a certificate of Australian citizenship, is bound to take into account whether members of the person's immediate family are Australian citizens." Grounds of appeal: "The Tribunal erred in law in failing to take into account a relevant consideration in the exercise of its power under para 13(9)(c) of the Act in respect of the first applicant, in that it failed to take into account that the first applicant's daughter with his Australian citizen wife was also an Australian citizen. The Tribunal failed to take into account a relevant consideration in the exercise of its power under para 13(9)(a) of the Act in respect of the second to fourth applicants, in that it failed to take into account that their sibling was an Australian citizen." The first question of law and the first ground of appeal 44 In Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 (" Re Dainty "), Davies J, as President of the Tribunal, reversed the decision of the delegate under s 13(9)(c) of the Act and decided that the Minister's guidelines were not appropriate to the applicant's circumstances.