FEDERAL COURT OF AUSTRALIA Nafeh v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 199 MIGRATION – application for relief in respect of decision of Migration Review Tribunal ('MRT') – Special Eligibility (Residence) (Class AO) Subclass 832 (Close Ties) visa – construction of criterion in subclause 832.212(4)(c) of Schedule 2 to Migration Regulations 1994 (Cth)– 'the greater part of the period that the Minister regards as the applicant's formative years' – whether MRT had correctly construed expression – whether arithmetical calculation called for – meaning of 'formative years'. STATUTORY INTERPRETATION – subclauses 832.211(3)(c)(iv) and 832.212(4)(c) of Schedule 2 to Migration Regulations 1994 (Cth). WORDS AND PHRASES – 'the greater part of the period' – 'formative years' Migration Regulations 1994 (Cth), Sch 2, Part 832 – subcll 832.211(3)(c)(iv); 832.212(4)(c) Khan v Minister for Immigration & Ethnic Affairs (1994) 35 ALD 47 cited MOHAMMAD TAHIR NAFEH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 859 of 2003 LINDGREN J 12 MARCH 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 859 OF 2003 BETWEEN: MOHAMMAD TAHIR NAFEH APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LINDGREN J DATE OF ORDER: 12 MARCH 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 859 OF 2003 BETWEEN: MOHAMMAD TAHIR NAFEH APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LINDGREN J DATE: 12 MARCH 2004 PLACE: SYDNEY REASONS FOR JUDGMENT INTRODUCTION 1 The applicant ('Mr Nafeh') applies under s 39B of the Judiciary Act 1903 (Cth) for orders in the nature of certiorari and mandamus in relation to a decision of the Migration Review Tribunal ('MRT'). The MRT's decision was made on 30 June 2003. By it, the MRT affirmed a decision of a delegate of the respondent (respectively 'the Delegate' and 'the Minister') that Mr Nafeh was not entitled to the grant of a Special Eligibility (Residence) (Class AO) Subclass 832 (Close Ties) visa. 2 The ground of the application is that the MRT erred in law in its construction of the following criterion which is found in subclause 832.212(4)(c) in Schedule 2 to the Migration Regulations 1994 (Cth): '832.212(4) An applicant meets the requirement of this subclause if the applicant: (a) … ; and (b) … ; and (c) before turning 18, spent the greater part of the period that the Minister regards as the applicant's formative years in Australia.' (my emphasis) (The par (c) requirement is now found in subclause 832.212(4)(d)) BACKGROUND FACTS 3 Mr Nafeh was born on 8 March 1979 in Pakistan, of which country he is a national. A few months after the applicant's birth, his parents took him to Saudi Arabia, where his father was employed by Saudi Air Lines and his mother was a teacher in a school. 4 Mr Nafeh first arrived in Australia with his parents and two younger siblings on 24 September 1995, when he was about 16˝ years old, as the holder of a Subclass 676 (Tourist) visa. He was granted a Bridging B visa on 27 October 1995, and has held a number of different bridging visas since that date. He departed Australia on 28 October 1995 and returned on 26 January 1996 – an absence of some three months. He has lived in Australia ever since his return. 5 On 17 October 1995, Mr Nafeh was included as a dependant under his father's application for a Family (Class AS) (Subclass 806) visa. That application was refused on 13 August 1998 and the refusal was affirmed by the Immigration Review Tribunal on 13 September 1999. 6 Mr Nafeh's mother and father have made several requests for the Minister to exercise the discretion given to the Minister by s 351 of the Act, in favour of the family. Counsel for Mr Nafeh informed me from the bar table that visas have been issued to Mr Nafeh's parents and two siblings. 7 Mr Nafeh applied for the Special Eligibility (Residence) (Class AO) visa in question on 28 February 2002. The Delegate decided to refuse his application on 31 October 2002 on the basis that she was not satisfied that Mr Nafeh had: 'before turning 18, spent the greater part of the period the Minister regards as his formative years, in Australia' ("the Criterion") by reference to subcl 832.211(3)(c)(iv). That subclause was identical to subcl 832.212(4)(c). The MRT expressly found that Mr Nafeh failed to satisfy each. The effect of both the Delegate's and the MRT's conclusions was that Mr Nafeh failed to satisfy one of the criteria which he was required to satisfy at the time of his application for the visa. 8 On 15 November 2002, Mr Nafeh applied to the MRT for review of the Delegate's decision. The MRT held a hearing on 17 June 2003. The MRT's reasons for decision contained the following summary of the evidence Mr Nafeh gave on that occasion: His father worked for Saudi Arabian airlines in administration, and the family lived in Jeddah for about 2 years and then in Dhahran. His mother taught English, maths and science in Saudi Arabia. His father's employer provided an accommodation allowance and the family lived in a block of units. He recalled that for the first 5 years of his schooling he attended a British and then a Canadian (and possibly American) school. These schools were private and did not necessarily follow the curriculum of a given country. From year 6 he attended the Pakistani International School. He thinks that was around the time his sister was born in 1989. He stayed at the school until he had nearly completed year 11, and then he and the family travelled to Australia. He recalled that the Pakistani School used to teach in Urdu but they were making a transition to teaching in English; he remembers using subject books in English. The school followed the Pakistani school system, and final senior exams were sent to Pakistan for assessment. He remembers that the family mixed with people from a number of other countries in the expatriate community, for example, other Pakistanis, Indians, Palestinians and Syrians. Most social activities took place at people's homes or in compounds. The rules in Saudi Arabia were strict and they could not, for example, have celebrations in halls. They had celebrations such as for birthdays or breaking the fast in Ramadan at home and visited other homes for similar occasions. The school he attended did not have any grounds and did not really provide extra curricular activities; it focussed on academic teaching. After year 3 or 4 the school divided into separate boys and girls sections. The family used to travel overseas each year during annual holidays, for about 4 weeks. His father had family in Karachi and they visited relatives there. His mother was from India and they visited relatives in Rampur and Aligarh. He remembers the family used to visit India about as frequently as they visited Pakistan. His father had lived in Saudi Arabia for about 21 years. His parents used to talk about the differences in the society in which they lived and their growing up. His mother, for example, talked about going to school and being able to play sport such as badminton. His father used to play hockey and cricket. In Saudi Arabia he recalled that they did not mix with local Saudis, and did not even play much publicly, as they sometimes were the subject of racial slurs from local people. His hobbies during the time he lived in Saudi Arabia were video games and cycling. He was interested in tennis, and played a little at one of the compounds. He also went swimming at a company compound in which a friend lived. They watched television mainly from neighbouring countries' networks, such as Bahrain and UAE. He recalled watching sport such as cricket on television, and remembered that he had to remain neutral if India played Pakistan given where his parents came from. He recalls his parents had friends from different countries and they showed by example tolerance of different people and religions. It was their nature that they helped people and mixed with many different communities. His mother had friends who were Hindus, and the family has kept in contact with people from different countries. His parents celebrated their own religion in a low-key manner. His father had to leave Saudi Arabia because of the policy of nationalisation of jobs; his contract was not renewed. They never lived in India or Pakistan. When he left Australia for 3 months in October 1995 it was because the family went back to Saudi Arabia to pack up and leave permanently. In Australia he started school around March 1996. He was placed in year 12 on the basis of his school reports. He found he had to make huge adjustments at school and generally, as everything was so different in Australia. He studied at TAFE in 1997 and commenced his degree studies in 1998, finishing at the end of 2002. The family stayed with his uncle in Australia. One of the biggest changes he had to adjust to was that life in Australia required a person to take greater independent action, and interact with other people to a greater degree. In cultures such as that in Pakistan family played a much more important role in assisting, whereas in Australia even if one had family one had to be more self-reliant. Friends at school helped him greatly to adjust to life here. Fellow students at Punchbowl Boys High were very welcoming and they told him about things in Australia. He made friends easily there. In Saudi Arabia it was not possible to undertake activities on an unsupervised basis. There were no cinemas in Saudi Arabia. He acknowledged that there were in Pakistan and India, but his visits there were mainly for the purpose of seeing family and he did not undertake many additional activities. In his first year in Australia he spent a lot of time studying, but after his HSC he started to go out, for example to concerts. He has sensed that there is greater freedom of religion in Australia and has thought and practised his own religion more actively here. In Saudi Arabia it was not possible to undertake activities that did not fit with that society's strict rules. He cannot live in India as he has a Pakistani passport and going back to Pakistan would be very hard as his ties are now in Australia. REASONING OF THE MRT 9 The MRT referred to a Procedures Advice Manual 3 ('PAM3') of the Department of Immigration and Multicultural and Indigenous Affairs, which stated in relation to the expression 'formative years', as follows: 'Formative years does not have legislated meaning. The following guidelines provide policy interpretation of this term. A person who has spent the greater part of their life in Australia between the ages of 5 and 18 may, without further enquiry, be regarded as satisfying this criterion. However, in all other cases, the period which constitutes the applicant's formative years will depend on that person's particular circumstances. The wording of this criterion reflects policy that assessment not be based on mere mathematical calculation. Nor (except as indicated in paragraph 2 above) is the test simply whether the person was in Australia for the greater part of their youth. Rather, officers should keep in mind that: · a person's "formative years" may be taken to mean those years in which they formed a sense of identity and their connection with a place in the world; and · greater weight should be given to where persons spend their adolescence (12-18 years) than to where they spent their earlier years; · policy envisages that persons who spent their formative years in Australia would have developed significant ties with the Australian community. However, officers should not attempt to define a person's formative years by reference to the extent, if any, that the person has become part of the mainstream Australian society (however that term is understood).' 10 In its reasons for decision, the MRT stated (at [21] and [22]): '21. Policy guidance concerning the interpretation of formative years is that a person who has spent the greater part of their life in Australia between the ages of 5 and 18 may be regarded as satisfying this criterion. However, in other cases the period constituting the applicant's formative years will depend on that person's particular circumstances. It is policy that assessment not be based on mere mathematical calculation nor is the test simply whether the person was in Australia for the greater part of their youth. Formative years may be taken to mean those years in which the applicant formed a sense of identity and their connection with a place in the world. Greater weight should be given to where the person spends their adolescence (12-18 years) than to where they spent their earlier years. Policy envisages that persons who spent their formative years in Australia would have developed significant ties with the Australian community. However, a person's formative years should not be defined by reference to the extent, if any, that the person has become part of mainstream Australian society (however that term is understood). 22. The question of whether an applicant has, before turning 18, spent the greater part of their formative years in Australia therefore appears to contemplate an examination of qualitative factors, including the child's development of a sense of cultural or emotional identity.' 11 The MRT noted (at [23]) that: * Mr Nafeh was born in Pakistan, travelled to Saudi Arabia with his parents shortly after his birth, and lived there until he travelled to Australia in September 1995; * he spent approximately one month in Australia in September/October 1995, visiting his uncle; * he then returned with his family to Saudi Arabia where he lived for some three months; * he then returned to Australia in late January 1996; * during 1996 he undertook Year 12 studies at Punchbowl Boys High School; and * he commenced TAFE studies in early 1997, at around the time when he turned 18 (8 March 1997). 12 In summarising, the MRT noted that Mr Nafeh had spent approximately one year and three months in Australia before turning 18. The MRT noted that this meant that Mr Nafeh had not spent the greater part of his life between the ages of 5 and 18 in Australia, and that his particular circumstances in that period would have to be considered. The MRT undertook that task as follows (at [24]–[28]): '24. The evidence is that the visa applicant lived with his family as part of the expatriate community in Saudi Arabia. He attended British and Canadian (and possibly American) private schools for the first 5 years of his schooling, and then the Pakistani International School from year 6 until nearly the end of year 11. The visa applicant gave evidence of the restrictive nature of his life in Saudi Arabia. But he also gave evidence of the way his family adapted their lifestyle to the circumstances they were in, and his awareness that they were part of a different set of cultural and social values than those that appeared to prevail in Saudi Arabia. The visa applicant gave evidence that he and his family had extensive contact with other expatriate groups in Saudi Arabia, in particular the Pakistani community. His schooling from year 6 followed the Pakistani curriculum. He and his family visited Pakistan or India annually. The visa applicant gave evidence of his awareness of his parent's tolerance of people from different countries and religions, and the family's ongoing ties to 2 countries, India from his mother's side, and Pakistan from his father's side. 25. The Tribunal is satisfied that as a result of his family environment and living in an expatriate community, the visa applicant had developed a significant sense of his cultural and religious values before coming to Australia. The Tribunal is not satisfied that the fact that he and his family found life in Saudi Arabia restrictive, establishes that those years he spent there were not formative. 26. The Tribunal has considered the evidence of the period the visa applicant spent in Australia before turning 18. The Tribunal acknowledges that this period, largely covered by the time he undertook year 12 studies, was a significant period for the visa applicant, and has contributed to his development. The evidence provided by friends, former teachers, and his brothers indicate the positive effect of the time he has spent in Australia. The Tribunal has had regard to this evidence, but is not satisfied that it establishes that the period in Australia before the visa applicant turned 18 was the greater part of his formative years. 27. The Tribunal has had regard to the opinion of Dr Goyer, a psychiatrist. Dr Goyer has given an opinion, drawing on Erik Erikson's theories of socio-emotional development of children and teenagers, that the period between 16 and 18 that the visa applicant spent in Australia is the most important period in his development. The Tribunal has noted that opinion, but has also noted that Dr Goyer's letter contains other evidence of the influential role the visa applicant's parents played in his life style, his cultural and social values, and his positive sense of himself. The Tribunal finds that this evidence is consistent with the visa applicant's own evidence of the positive and significant influence of his parents during the time he lived in Saudi Arabia. The Tribunal is not satisfied that Dr Goyer's opinion, together with other evidence of the visa applicant's time in Australia, establishes that the greater part of his formative years were spent in Australia. 28. The Tribunal has also had regard to the evidence that the visa applicant has developed significant ties to Australia in the total period that he had lived here. But the policy guidelines caution against defining the applicant's formative years by reference to the extent that the person has become part of mainstream Australian society. The Tribunal finds that at the time of application, the visa applicant's sense of identity, and values, had been critically shaped by the period he lived in Saudi Arabia with his family. The Tribunal acknowledges that the period he spent in Australia before turning 18 was also significant. Having regard to all the evidence, however, the Tribunal is not satisfied that before turning 18, the visa applicant spent the greater part of the period that the Minister regards as the applicant's formative years in Australia.' REASONING ON THE PRESENT APPLICATION 13 The adjective 'formative' is defined in the Macquarie Dictionary as follows: '1. giving form or shape; forming; shaping; fashioning; moulding. 2. relating to formation or development: …' The Oxford English Dictionary defines the adjective 'formative', relevantly, as follows: '1. Capable of forming or creating; serving to fashion. b Of or pertaining to formation; …' 14 The expression 'the greater part of the period' requires a mathematical calculation. This does not mean, however, that the Criterion requires only a mathematical calculation. It does not, because the expression 'the period that the Minister regards as the applicant's formative years' calls for assessment and evaluation. PAM3 acknowledges this and goes so far as to exclude, in favour of all applicants for a visa, the first five years of life. 15 The Criterion assumes that every applicant will have a "period [of] formative years". It does not assume, however, that all applicants will have been formed, shaped, fashioned or moulded by events, experiences and circumstances occurring at the same stages of life or over the same periods. 16 The Criterion requires the events, experiences and circumstances affecting the particular applicant "as formed" to be regarded, and the question to be asked whether the greater part of the period of the particular applicant's formative years was spent in Australia before the applicant turned 18. 17 The Criterion requires that an applicant's formative years be conceived of as constituting a "period". No doubt some events, experiences and circumstances, and therefore some years or lesser periods of time, will be more influential than others in shaping the particular applicant. While the Criterion does not require that the period be the same for all persons, it does not permit identification and aggregation of the times covered by particular significant events, experiences and circumstances, which were in fact separated in time, in order to arrive at an artificial composite "period". It does, however, permit a period, including a period longer than the first five years of life, to be disregarded, where this is appropriate in the case of a particular applicant. It is possible to conceive of special circumstances in which a longer period than the first five years might properly be considered as making no significant contribution to the person of a particular applicant "as formed" at the time of the application. 18 Finally, the Criterion does not require, at peril of legal error, the decision-maker to identify expressly a particular period to which he or she applies the 'greater part' test. 19 I do not perceive any inconsistency between my approach to the construction of the Criterion outlined above and anything said by Whitlam J in Khan v Minister for Immigration & Ethnic Affairs (1994) 35 ALD 47 at 51 in relation to the expression; 'before turning 18, spent the greater part of the period that the Minister regards as the applicant's formative years in Australia' in subcl 806.721(6) of Schedule 2 to the Migration (1993) Regulations. 20 In the present case, Mr Nafeh turned 18 on 8 March 1997. He had completed Year 12 at Punchbowl Boys High School in 1996, his Higher School Certificate having been issued on 7 January 1997. Apparently he had just enrolled at the Southern Sydney Institute of TAFE NSW for the Certificate III in Information Technology, a course that he successfully completed in December 1997. 21 What was the period of years over which Mr Nafeh was formed? It would only be if we could say that Mr Nafeh's formative years did not extend backwards further than two years and five months from his eighteenth birthday, that he could satisfy the Criterion. This is so because he spent only approximately one year and two and a half months in Australia before his eighteenth birthday as follows: 24 September 1995 – 28 October 1995: 1 month and 4 days 26 January 1996 – 8 March 1997 1 year, 1 month and 11 days ------------------------------------ Total 1 year, 2 months and 15 days 22 The period of two years and five months mentioned began in early October 1994, when Mr Nafeh was fifteen years and seven months old. 23 Mr Nafeh's submission has to be that the MRT was required to regard the long period which Mr Nafeh spent in Saudi Arabia as a period of something less than one year and two and a half months of his formative years. 24 Even Dr Liz Goyer, Consultant Psychiatrist and Psychogeriatrician, whose report dated 14 October 2002 on Mr Nafeh was before the MRT, did not go so far as to say that the years spent in Saudi Arabia were not 'formative'. She stated: 'Even though Mohamed only spent two years of the formative years in Australia in my opinion these are the two most important years in terms of forming an identity.' Likewise, counsel for Mr Nafeh does not submit that his client's only formative years were those spent in Australia. 25 Dr Goyer and counsel for Mr Nafeh emphasise that Mr Nafeh's life in Saudi Arabia was very confined, both geographically and emotionally, and that he was considered in that country to be a second-class resident and had limited rights and experiences. Dr Goyer pointed out that Mr Nafeh was confined to certain schools and areas and was not allowed part-time jobs and had very little contact with Saudi nationals. She stated: 'Mohamed's self esteem and identity could not have developed positively in this environment.' 26 The MRT acknowledged the formative importance of the relatively short period Mr Nafeh had spent in Australia immediately preceding his eighteenth birthday. However, it thought that the years spent in Saudi Arabia had also been formative, not so much in terms of the influence of Saudi Arabian society, but because of his family, schooling and contact with expatriate groups, in particular, the Pakistani community in Saudi Arabia (see [24]–[28] set out at [12] above). 27 I do not think that the MRT was required, as counsel for Mr Nafeh seemed to suggest, to confine its attention to Mr Nafeh's 'Australianness'. A broader concept is involved. Following PAM3, the MRT referred to a sense of identity and awareness of a connection with a place in the world. "Australianness" may be part of a person's sense of identity and of connection with a place in the world, but it is not the whole of it. So, in the present case, the period of one year and two and a half months spent in Australia was clearly to be taken into account as part of the period of Mr Nafeh's formative years, but it was not the only period that was to be taken into account. 28 Counsel for Mr Nafeh sought to emphasise 'acculturation' which he defined as the 'process of taking on or identifying with a culture as one's own'. He submitted that this concept would include 'issues' such as: ' • language; · education; · social norms and mores; · whether and how the family culture conforms to the dominant culture of the country; · identification with and participation in the popular culture of the country; · whether and to what extent a person sees society as needing to be structured along non-secular lines; and · to what extent have political concepts such as the freedom and values of liberal democratic principles been internalised as basic necessities.' Some of these elements suggest a departure from the statutory general notion in favour of a more limited test of cultural assimilation. 29 In the present case, it is relevant to inquire as to the period of years which formed Mr Nafeh's language, religion, moral sense, awareness of family connection, awareness of racial identity and cultural identification and practices. No doubt the period of one year two and a half months spent in Australia before he turned 18 contributed in some or all of these respects, but the MRT justifiably thought that much of the period spent in Saudi Arabia did so too. 30 The Criterion raised a question of fact for the MRT. I do not think the MRT erred in not being satisfied that, before turning eighteen, Mr Nafeh had spent in Australia the greater part of the period that the Minister regarded as his formative years. CONCLUSION 31 For the above reasons, the application should be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 12 March 2004 Counsel for the Applicant: Mr A S Howen Solicitor for the Applicant: Ward Maxwell & Co Counsel for the Respondent: Mr J Smith Solicitor for the Respondent: Sparke Helmore Date of Hearing: 4 March 2004 Date of Judgment: 12 March 2004