SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1493

FEDERAL COURT OF AUSTRALIA

SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1493 SLMB, SLNB, SLPB & SLQB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 487 OF 2003 MANSFIELD J 9 DECEMBER 2003 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 487 OF 2003

BETWEEN: SLMB, SLNB, SLPB & SLQB

APPLICANTS

AND MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 9 DECEMBER 2003

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay to the respondent costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 487 OF 2003

BETWEEN: SLMB, SLNB, SLPB & SLQB

APPLICANTS

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 9 DECEMBER 2003

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application under S 39B of the Judiciary Act and s 75(v) of the Constitution for prerogative relief to quash a decision of the Migration Review Tribunal (the Tribunal) given on 14 April 2003. The Tribunal affirmed the decisions of a delegate of the first respondent that the applicants are not entitled to the grant of General (Residency) (Class AS) subclass 832 (Close Ties) visas for which they had applied on 18 April 2000. 2 The principal applicant is the first‑named applicant. The supporting applicants were her husband and two children, but it is common ground that they were secondary applicants and that their status or their eligibility for the visas applied for depended upon the outcome of the principal applicant's application. I shall hereafter call her the applicant. The visa for which they applied is commonly called a Close Ties visa. 3 The applicant was born on 14 July 1957. She and her husband and children are nationals of Fiji. Between February 1972 and December 1974 she attended schooling in Sydney as a boarder. Her student visa expired on 1 June 1975, when she was almost 18. She returned to Fiji sometime in the first half of 1975. Consequently, she was in Australia for about three and a half years during the ages of 14 to almost 18. 4 The applicant and her family have made various return visits to Australia since 1997. However, there was a period of in excess of 20 years when the applicant did not return to Australia. 5 To be eligible for the Close Ties visa for which she had applied, the delegate of the respondent and, on review, the Tribunal had to be satisfied of the criteria specified in the schedules to the migration regulations. Of particular relevance to her application are the criteria specified in cl 832.212(1), (4) and (5) of Sch 2 to the Migration Regulations. They specify criteria to be satisfied at the time of the application. They then provided: '(1) The applicant meets the requirements of subclause (2), (3), (4) or (5). (2) … (3) … (4) An applicant meets the requirement of this subclause if the applicant: (a) has turned 18; and (b) ceased to hold a substantive visa before turning 18; and (c) before turning 18, spent the greater part of the period that the Minister regards as the applicant's formative years in Australia. (5) An applicant meets the requirements of this subclause if he or she satisfies: (a) Schedule 3 criterion 3002, and (b) The criteria set out in subdivision 150.21, 151.21 or 152.21.' 6 The applicant claimed only to meet the requirements of subcl (4) of cl 832.212. It was not in issue that she has turned 18, and that she ceased to hold a substantive visa before turning 18. The critical issue was whether before turning 18 she spent the greater part of the period that the respondent (and, on review, the Tribunal) regards as her formative years in Australia: see cl 832.212(4)(c). She did not claim to be eligible for the visa by the alternative requirements specified in cl 832.212(5) being met. 7 The Tribunal, after referring to the relevant regulation and to the evidence, properly recognised the applicant's claim. It identified the crucial question as being what is meant by the expression 'formative years' in cl 832.212(4)(c). It said: 'The crucial question is what is meant by the expression "formative years". The term is not defined in the Migration Regulations. Under policy (as expressed in Migration Series Instruction No 10 at the time of application, and which at the time of decision, has now been replaced by PAM 3), a person who has spent the greater part of their life in Australia between the ages of 5 and 18 years may without further enquiry be regarded as satisfying the requirement to have spent their formative years in Australia. In all other cases the period which constitutes a person's formative years will depend on the person's particular circumstances. In other words, an assessment of a person's formative years is not merely a mathematical calculation. Rather the term is taken to mean those years in which the person formed a sense of identity and connection with a place in the world. In the case of a person who has spent their formative years in Australia, could be expected to have developed significant ties with the Australian community.'