Jie v Minister for Immigration
[2007] FMCA 1969
•6 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JIE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1969 |
| MIGRATION – “formative years” – whether greater part spent in Australia – weight of evidence a matter for the Tribunal. |
| Migration Act 1958 (Cth), ss.359A, 474 Migration Regulations 1994 (Cth), reg.832.212(4) |
| Nafeh v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 199 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Elbrow v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 595 |
| Applicant: | ZHANG JIE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 1565 of 2007 |
| Judgment of: | Turner FM |
| Hearing dates: | 25 September, 8 November 2007 |
| Date of last submission: | 8 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Mr El-Hanania of Slattery Thompson Solicitors |
| Counsel for the Respondents: | Mr D. Godwin |
| Solicitors for the Respondents: | Ms J. Pownall of Australian Government Solicitor |
ORDERS
The application and amended application are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1565 of 2007
| ZHANG JIE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Migration Review Tribunal (“the Tribunal”) signed on 12 April 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a Special Eligibility (Residence) (Class AO) Subclass 832 (Close Ties) visa.
Background
On 15 April 2005 the applicant applied to the Department of Immigration and Multicultural Affairs for a Subclass 832 Close Ties visa. In this application he claimed that the age at which he arrived in Australia constitutes the predominant age for his development in life. The applicant claimed that he is now integrated into Australian society and considers Australia his home (Court Book “CB” 1-2).
A delegate of the first respondent refused the application on 29 March 2006 (CB 84); that refusal was affirmed by the Tribunal on 12 April 2007 (CB 217) because the applicant failed to meet the requirements of reg.832.212(4)(d) of the Migration Regulations 1994 (Cth) (“the Regulations”). That provision required that an applicant “before turning 18, spent the greater part of the period that the Minister regards as the applicant’s formative years in Australia”.
The matter is now before this Court pursuant to an application for judicial review filed on 17 May 2007.
At the hearing on 25 September 2007, the applicant sought an adjournment so that written submissions could be filed and served. The Court ordered that they be filed and served by 26 October 2007. The submissions have not been filed and served as ordered. The proper functioning of the Court is impeded by parties not complying with orders for the conduct of the matter. An outline of submissions was filed on behalf of the applicant in Court on the day of hearing on 8 November 2007. Those submissions took the form of an amended application.
Issues for determination
The issue before the Court is as follows:
·Whether the Tribunal erred in law in finding that the applicant did not spend the greater part of his formative years in Australia.
Findings of the Court
The applicant is a 24 year old national of China. He arrived in Australia on 7 November 1998. He studied the English language for half a year and then studied at Fairfield High School from Year 9 until Year 11. The applicant spent 2 years and 3 weeks in Australia prior to turning 18 on 2 January 2001. He went to school in China from the age of 12 to 15 and 11 months.
Policy interpretation of “formative years” is provided in Departmental document “PAM(3)” as follows:
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 (CB 221.10). (The Tribunal found that the applicant did not satisfy that criteria – CB 222.3).
In other cases the period constituting the applicant’s formative years depends on that person’s particular circumstances. (CB 221.10)
The Tribunal stated at CB 221.10 that:
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, and 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).
The Tribunal then concluded at CB 222.2 that:
The information is relevant as you only spent 2 years and 3 weeks in Australia prior to turning 18 years of age and there is no evidence before the Tribunal to suggest that the years you spent in China from 12 years of age to 15 years 11 months of age were not part of your formative years. This leads the Tribunal to conclude that your formative years were from 12 years to 18 years of age and that you did not spend the greater part of your formative years in Australia and therefore not meet the requirements of paragraph (d) of sub clause 832.212(4).
You arrived in Australia with your mother on 7 November 1998. You told the Tribunal at hearing that you and your mother resided together after you both returned from China in December/January 2006. You told the Tribunal, at hearing, that you stopped living with your mother in about October 2006. You have provided no evidence to the Tribunal that you and your mother no longer live together.
This information is relevant as it leads the Tribunal to conclude that you do not meet paragraph (b) of subclause 832.221(3) which states:
(b) the applicant is not a member of, and does not reside with, the family unit (if any), with which the applicant first entered Australia;
The Court finds no error in the Tribunal concluding that the applicant’s formative years were from 12 to 18 years of age, and that the applicant did not spend the greater part of his formative years in Australia.
The Court refers to the decision of Justice Lindgren in Nafeh v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 199 at [14] that “the expression ‘the greater part of the period’ requires a mathematical calculation”. But that is not the only criteria because of the words in (4)(d) “that the Minister regards as the applicant’s formative years”. His Honour stated that PAM(3) “exclude[s,]…the first five years of life”. His Honour stated at [16] that
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.
The Court accepts the submission for the first respondent that the Full Court upheld Justice Lindgren’s decision (Nafeh v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 232) and regarded the expression “formative years” to be an expression of wide meaning and indeterminate content (at [6]). The Full Court stated at [4] that
the criterion ultimately depends on the MRT’s assessment of what have been an applicant’s formative years and the extent to which they have been spent within and outside Australia. The criterion does not raise, as an objective fact, what were the formative years of an applicant and where they were spent.
It is therefore a matter for subjective assessment by the Tribunal of what have been the applicant’s formative years.
The first respondent referred to the decision of Illankovan v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 220 at [27], where Lander J observed that the criterion
requires a finding as to the length of time that the applicant spent in Australia before turning 18…Secondly, it needed to make a finding as to the applicant’s formative years in Australia. Thirdly, the MRT was required to form a judgment as to whether the applicant had thus spent the greater period of his formative years in Australia.
Here, the Tribunal, after considering the above case, concluded that in its view “the applicant’s formative year were from 12 years of age to 18 years of age.” That finding of fact was a matter for the Tribunal and is not open to review.
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
Having made the finding that the applicant’s formative years were from age 12 to 18, and having regard to the evidence and finding that the applicant spent only 2 years and 3 weeks of that time in Australia, the decision of the Tribunal that the applicant did not satisfy reg.832.212(4) was properly open to it. No error of law has been established.
The application
In his application, the applicant set out two grounds as follows:
(1)The Tribunal fell into jurisdictional error by asking itself the wrong questions.
(2)The Tribunal fell into jurisdictional error by failing to take into account the submissions of the applicant either in part or at all.
The amended application set out six grounds as follows (which have been re-titled (a) to (f)).
(a)In Nafeh v MIMIA [2004] FCA 199 at [14] the Court makes it clear that the issue of establishing close ties to Australia is not simply a matter of a mathematical calculation of how long the Applicant has been in Australia.
(b)The Tribunal having made a determination of when the Applicant’s formative years may have been then simply took a mathematical view of the time the applicant had been in Australia and in doing so asked itself the wrong question (CB 145).
(c)In adopting a mathematical approach the Tribunal has not asked itself the correct question or applied the correct test to the grant of the visa and has therefore fallen into jurisdictional error.
(d)The Tribunal failed to properly consider the question of what the formative years are and or were.
(e)Further, while the Tribunal make reference to a Psychological report and note its content the Tribunal have failed to give weight to the evidence therein which establishes the Applicant’s formative years were all in Australia (CB 145).
(f)In failing to understand the contents of the psychological report the Tribunal has failed to properly consider the evidence of the Applicant and has therefore fallen into jurisdictional error.
Findings of the Court in relation to the grounds in the application
Ground one asserts that the Tribunal asked itself the wrong questions. The Court finds that the Tribunal asked itself the correct questions as referred to above. Ground one is rejected.
Ground two alleges that the Tribunal failed to take the applicant’s submissions into account. The Tribunal set out the oral submissions (CB 219-220) and the written evidence of the applicant (CB 222-228.1). The Tribunal also set out a summary of the oral submissions (CB 220) and written evidence of the applicant’s witnesses (at CB 227), and the submissions of the applicant’s advisor (CB 220-221). The Tribunal referred to much of this material in its “Findings and Reasons” (CB 228-232). The Tribunal considered the report from the clinical psychologist but decided to give it no weight as it did not address the applicant’s growth and development in China. The Tribunal was entitled to give the report the weight it considered appropriate: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]. There is no substance to ground two; it is rejected.
Findings of the Court in relation to the grounds in the amended application
Ground (a) contends that the issue of establishing close ties to Australia is not simply a matter of a mathematical calculation. The Tribunal in the present case did not treat the issue as simply a matter of mathematical calculation (CB 229.8).
Ground (b) contends that by simply taking a mathematical view, the Tribunal erred in assessing how much of the applicant’s formative years had been spent in Australia. The Tribunal’s considerations were not limited to a mathematical calculation.
Ground (c) alleges that by adopting a mathematical approach the Tribunal has not asked itself the correct question. As the Tribunal did not adopt a mathematical approach as the sole determinate, this ground is rejected.
Ground (d) alleges a failure to properly consider what “formative years are or were”. The Court rejects this allegation. The decision shows a proper analysis of that issue (CB 229.7-231.10).
Ground (e) complains about the weight given to the psychological report (at CB 145-149). Weight is a matter for the Tribunal. As stated by the Federal Court of Australia in Lee (ante): “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”. Ground (e) does not contain a valid ground for review and is rejected.
Ground (f) alleges that by failing to understand the contents of the psychological report, the Tribunal failed to properly consider the evidence, and so has fallen into jurisdictional error. The Tribunal considered the psycologist’s report at CB 231.7 and set out its reasons for placing no weight on it (CB 231.9). It was a matter for the Tribunal whether it accepted the evidence and/or what weight it gave it: Lee (ante). This ground is rejected.
In Nafeh (ante) at [14] Justice Lindgren stated that the criterion of “what is an applicant’s formative years?” does not require only a mathematical calculation “because the expression ‘the period that the Minister regards as the applicant’s formative years’ calls for assessment and evaluation”. In Illankovan (ante) at [26]-[27], Justice Lander stated that in considering whether the applicant spent the greater part of his formative years in Australia before he turned 18,
(1)The Tribunal is required to make a finding as to the length of time that the applicant spent in Australia before turning 18;
(2)The Tribunal is required to make a finding as to the applicant’s formative years in Australia; and
(3)The Tribunal is required to form a judgment as to whether the applicant had thus spent the greater part of his formative years in Australia.
The Tribunal followed that decision in this matter and found that the applicant spent 2 years and 3 months in Australia prior to him turning 18 on 2 January 2001. The Tribunal stated that the issue is whether that period of 2 years and 3 months is the greater part of the period that the Minister regards as the applicant’s formative years. The Tribunal set out its deliberations in assessing what are the applicant’s formative years in Australia and concluded that the applicant’s formative years were from 12 years of age to 18 years of age (CB 229.7-231.10). That assessment was not simply a matter of mathematical calculation. The Tribunal then concluded that on the basis that the applicant spent 2 years and 3 months of those 6 years in Australia, he did not spend the greater part of his formative years in Australia (CB 231.10). The Tribunal thereby complied with the steps set out in Illankovan (ante). No valid complaint can be made about the Tribunal’s deliberations. Its assessments were not merely mathematical as complained in the grounds of the amended application.
The first respondent submits, correctly, that the Tribunal did not simply make a mathematical calculation but had regard to what happened in China and Australia in the course of making a subjective assessment. The complaints about the method of assessment are rejected.
It is submitted for the first respondent that the assessment of whether the greater part of the formative years was in China or Australia can be done in a mathematical way as illustrated by the judgment in Nafeh (ante) at [14], where his Honour Justice Lindgren concluded that “the expression ‘the greater part of the period’ requires a mathematical calculation”. There is nothing in the decision of the Full Court on appeal in Nafeh v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 232 that says that that passage is in error.
The applicant submits that if the Tribunal wanted the psychologist’s report clafified it could have invited the applicant pursuant to s.359A to clarify it. Section 359A refers to no requirement to invite the applicant to put further material to clarify material then before it. The Tribunal was not required to invite the applicant to to further clarify what is stated in the psychologist’s report. The applicant submits that some weight should have been given to the report – weight is a matter for the Tribunal: Lee (ante).
The applicant referred to the decision in Elbrow v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 595 where at [7] Justice Spender referred to the provision in the Department’s policy manual (Provisions Advice Manual 3 as at 22 June 2001) 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.
The deliberations of the Tribunal in the present matter took that consideration into account (CB 230.7).
The applicant referred to the decision in Nafeh (ante) and said that an assessment of what constitutes the applicant’s formative years will depend on that person’s particular circumstances. The Tribunal in the present matter considered the applicant’s particular circumstances at CB 229.7-231.10.
The first respondent refers to the defect in the psychologist’s report in not considering whether the years spent in China could have formed part of the applicant’s formative years. It is said that the Tribunal was justified in giving no weight to the report. Were it necessary to decide the issue, the Court would agree, but weight is a matter for the Tribunal: Lee (ante).
The first respondent referred to the decision in Illankovan (ante) at [42] where the failure of the Tribunal to refer to a psychologist’s report as to formative years was held to not be of any significance. In the present case, the Tribunal analysed the report and decided to give it no weight, which it was entitled to do.
The applicant submits that the Tribunal should have granted an adjournment as requested (CB 197) to enable the applicant to put further material in support of his case. There is no requirment in the Migration Act to grant an adjournment. As submitted for the first respondent, the material at CB 204 and 205 shows that the Tribunal did give extra time and further material was submitted (CB 206-210). As can be seen from CB 227.10, the Tribunal intended to hand down its decision on 11 April 2007, but received further information from the applicant and instead handed down its decision on 23 April 2007 (CB 213 and 232).
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: M Giang
Date: 6 December 2007
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