Hneidi v Minister for Immigration & Citizenship [2009] FCA 983

FEDERAL COURT OF AUSTRALIA

Hneidi v Minister for Immigration & Citizenship [2009] FCA 983

ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal dismissing applicants' application for review of decision of Minister's delegate refusing to grant applicants Australian citizenship – first applicant was married to Australian citizen – second to fourth applicants were children of the marriage who were not Australian citizens – another child of the marriage was an Australian citizen – where Tribunal applied Australian Citizenship Instructions – whether Tribunal conducted independent assessment – whether Tribunal failed to take into account that the first applicant had a child that was an Australian citizen Held: appeal dismissed – Tribunal made independent assessment of the material before it – no suggestion that Instructions were unlawful – Tribunal erred in deciding that Instructions were ministerial guidelines when they were departmental guidelines, but this was error of fact and weight to be given to Instructions is matter for the Tribunal – Tribunal did take into account Australian citizenship of first applicant's other child.

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1), 30(1A) Australian Citizenship Act 1948 (Cth) s 13 Australian Citizenship Act 2007 (Cth) Migration Act 1958 (Cth) s 12, s 13 Taxation (Unpaid Company Tax) Assessment Act 1982 (Cth) s 5 Aston and Secretary, Department of Primary Industry, Re (1985) 8 ALD 366 discussed Becker and Minister for Immigration and Ethnic Affairs, Re (1977) 1 ALD 158 discussed Dainty and Minister for Immigration and Ethnic Affairs, Re (1987) 6 AAR 259 discussed Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 discussed Drake and Minister for Immigration and Ethnic Affairs (No 2), Re [1979] 2 ALD 634 discussed Federal Commissioner of Taxation v Swift and Others (1989) 18 ALD 679 discussed Hneidi v Minister for Immigration and Citizenship (2008) 104 ALD 668 cited Lofthouse and Australian Securities and Investments Commission, Re (2004) 82 ALD 481 referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 discussed Sadiq and Minister for Immigration and Multicultural and Indigenous Affairs, Re [2006] AATA 75 referred to Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 referred to MAEN HNEIDI, DALIA HNEIDI (BY HER NEXT FRIEND MAEN HNEIDI), RAMY HNEIDI (BY HER NEXT FRIEND MAEN HNEIDI) and TALA HNEIDI (BY HER NEXT FRIEND MAEN HNEIDI) v MINISTER FOR IMMIGRATION AND CITIZENSHIP