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

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.

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.’

8                     Counsel for the applicant accepted that with one reservation that passage in the Tribunal's reasons is consistent with it properly identifying the question which it must address, and properly identifying matters which it could consider in addressing that question.  The reservation was as to the last sentence in that paragraph which, it was submitted, involved the Tribunal looking at matters beyond that permitted by cl 832.212(4)(c) and in effect looking at criteria alternatively prescribed in cl 832.212(5)(b), and by reference in cl 150.211(c)(i) and 151.211(c).  I shall refer back to those subclauses shortly.

9                     I do not accept that the sentence referred to demonstrates that the Tribunal was doing other than addressing that which cl 832.212(4)(c) required.  Counsel for the applicant accepted that it was appropriate for the Tribunal to consider the years during which the applicant formed a sense of identity and connection with a place in the world.  He accepted further that some evidence of whether that had taken place during the period the applicant was in Australia as a student between 1972 and the early part of 1975 could emerge from the ties which she developed during that period.  In my judgment, that is all that the passage refers to.

10                  The Tribunal then turned to address further evidence.  Its reasons are in the following terms:

’27.      The visa applicant has submitted evidence from family and friends attesting to how well she has settled into Australian society and that she has made a good contribution to Australian society.

28.       The Tribunal has information that the visa applicant spent the time in Australia before she turned eighteen, as a border at Methodist Ladies College, Burwood (MLC).  There is a letter from Philippa Longworth, who states she first met the visa applicant in 1972, when they were both students at MLC.  A letter from MLC states that the visa applicant attended the school from February 1972 to December 1974.  According to other evidence before the Tribunal, the visa applicant’s mother currently has a matter for consideration before the Minister asking him to exercise his s351 powers.  The visa applicant has a sister in Australia who is an Australian citizen.

29.       The majority of the evidence before the Tribunal relates to how well the visa applicant has settled into Australian life since she arrived in 1998.  There is very little evidence before the Tribunal in relation to the visa applicant’s development and ties in respect to [sic] the period before she turned eighteen.  In this respect, the Tribunal accepts that the visa applicant attended boarding school in Australia between February 1972 and December 1974.  However, the evidence before the Tribunal refers to ties with the Australian community which have developed since the visa applicant returned to Australia when she was forty one years of age.

30.       There is little evidence before the Tribunal to suggest that the visa applicant’s ties to Australia are greater than her ties with Fiji.  The visa applicant’s mother is currently in Australia on a bridging visa.  The AAT recently found that the visa applicant’s mother is not entitled to Australian citizenship by descent.  The matter is currently before the Minister for his consideration.

31.       The visa applicant left Australia when she was seventeen and did not return again until 1998, when she was forty one years old.  There is little evidence of what contact she maintained with Australia after she left and until she returned.  There is little evidence that the visa applicant became a part of mainstream society in Australia during her formative years.’

32.       The Tribunal is not satisfied on the evidence before it that the visa applicant has spent the greater part of her formative years in Australia.  Whilst the Tribunal accepts that the visa applicant attended school in Australia from February 1972 until December 1974, the Tribunal is not satisfied that this is the greater part of her formative years.’

11                  As can be seen, despite her reliance upon cl 832.212(4)(c), the applicant submitted evidence relating to how she has settled into Australian society more recently, and her contribution to Australian society and her ties with Australian society more recently, as well as matters relating to the period she was in Australia as a student between 1972 and 1975.  I do not regard pars 27, 28 and 29 of the Tribunal's reasons as doing more than referring to material which had been provided to it in support of the application.

12                  Counsel for the applicant particularly focused upon pars 30 and 31 of the Tribunal's reasons.  He contended that they demonstrate that the Tribunal lost sight of what it properly identified as the crucial question and started to address the eligibility of the applicant under other clauses of criteria for a Close Ties visa.  In particular, he contended, par 30 demonstrates the Tribunal addressing cl 832.212(5)(b) and the criteria set out in cl 150.211. 

13                  Subclause 150.211 provides:

‘The applicant:

(a)               has lost Australian citizenship because of section 17 or subsection 23 (1) ofthe Australian Citizenship Act 1948 or section 20 of the Nationality and Citizenship Act 1948; and

(b)               resided in Australia as an Australian citizen for an aggregate period of not less than 2 years; and

(c)               either:

(i)                 has maintained business, cultural or personal ties with Australia; or

(ii)        has family ties with Australia that are stronger than those with any other country.’

14                  As can be seen, subcl (c) of that regulation does direct attention to whether the applicant has maintained business, cultural or personal ties with Australia or has family ties with Australia stronger than those with any other country.  Clause 151.211(c) also specifies as a criterion to be satisfied at the time of the application whether the applicant has maintained business, cultural or personal ties with Australia.

15                  It is correct, as counsel for the applicant pointed out, that the first sentence of par 30 in the Tribunal’s reasons bears a significant similarity with the wording in the criterion specified in cl 150.211(c)(ii).  Apart from that sentence, I do not regard the balance of par 30 as doing other than recording a state of affairs which was the subject of evidence before the Tribunal.

16                  It was also put that par 31 of the Tribunal's reasons also reflects a focus on cl 150.211(c) as well.  I do not think that is necessarily the case.  The last sentence of that paragraph focuses quite clearly on what has been accepted as the crucial question prescribed by cl 832.212(4)(c).  In my judgment, given the acknowledgment of counsel for the applicant that the relationships that the applicant developed during the period she was in Australia as a student between 1972 and 1975, the topic being considered could inform the judgment as to whether those years were her formative years.  It was a legitimate inquiry on the part of the Tribunal to see whether after she left Australia in the first half of 1975, the applicant maintained contact with persons in Australia.  Such evidence might inform the extent to which she had developed personal relationships in Australia during her student period in Australia.  Counsel for the applicant accepted that the development of such personal relationships would be relevant to whether those student years in Australia were part of, or the greater part of, her formative years.

17                  Paragraph 32 then demonstrates that the Tribunal has properly addressed the question which cl 832.212(4)(c) dictates.

18                  The Tribunal's reasons are not to be read with an eye keenly attuned to the perception of error:  See eg Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

19                  In the circumstances, I do not regard the first sentence of par 30 as demonstrating error on the part of the Tribunal in the way in which counsel for the applicant contended.  Nor do I regard it as demonstrating a focus by the Tribunal upon cl 832.222(1) and (2) of the regulations dealing with further criteria to be satisfied at the time of the decision.  It is consistent with the Tribunal simply addressing the evidence which was adduced to it by the applicant in support of her application.  The Tribunal may have chosen to ignore the evidence as to the relationships or the ties the applicant has developed with Australia since she resumed visits to Australia in 1997, or since she has been resident in Australia since March 2000.  It apparently thought it appropriate to note and comment upon that evidence.  It was not wrong to have done so.  That it did so does not mean it lost sight of the real issue it was to assess.  Paragraph 32 of its reasons shows it maintained the correct focus.  Moreover, cl 150.211 has a series of cumulative requirements.  The Tribunal has not addressed subcl 150.211(a) or (b).  There is no suggestion that there is any material which could have enlivened those subclauses.  In those circumstances it is unlikely that the Tribunal misconceived its task by addressing subcl (c) of that clause and ignored those earlier clauses.  Similarly, as cl 151.211 also includes cumulative requirements, including one the applicant clearly did not meet (that she spent the greater part of her life before the age of 18 within Australia), it is also unlikely the Tribunal was addressing cl 151.211.  It is also unlikely that sentence shows the Tribunal addressing the criteria in cl 832.221(1) and (2) because they only arise after the criteria to be satisfied at the time of the application have been satisfied.  It is the more likely in my judgment that the Tribunal in that sentence is simply addressing the evidence which was adduced to the Tribunal, and was making some observations about it.  As I have said, that may have been unnecessary on the part of the Tribunal.  It does not demonstrate, in the light of the whole of the reasons, that the Tribunal fell into the error which counsel for the applicant contended.

20                  Upon my consideration of the Tribunal's reasons, I am satisfied that it identified the issue which it was required to address by cl 832.212(4)(c) of Sch 2 to the regulations, that it properly addressed that question and did not misdirect itself in law in the manner in which it addressed that question, and that the conclusion which it reached was one available to it.  In those circumstances, I am not persuaded that there is jurisdictional error on its part.

21                  I accordingly dismiss the application.  I order that the applicants pay to the respondent costs of the application.

Associate:

Dated:              15 December 2003