Kim v Minister for Immigration
[2007] FMCA 52
•1 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KIM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 52 |
| MIGRATION – Review of Migration Review Tribunal decision − where applicant unsuccessful in obtaining a Special Eligibility (Residence) (Class AO) visa − where applicant unsuccessfully advanced claims under sub-classes 832 and 831 (close ties & prospective marriage spouse) − where the Tribunal considered the applicant had not spent a greater part of his formative years in Australia − whether the Tribunal failed to consider whether the applicant’s self awareness and personal identity were formed in Australia − whether the Tribunal failed to address relevant criteria. |
| Nafeh v Minister for Immigration [2004] FCA 199 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1985-1986) 162 CLR 24 |
| Applicant: | KIM SUNG SU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG2219 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 19 January 2007 |
| Date of Last Submission: | 19 January 2007 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr L J Karp |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2219 of 2005
| KIM SUNG SU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Migration Review Tribunal made on 20 July 2005 affirming a decision that the visa applicant was not entitled to the grant of a Special Eligibility (Residence) (Class AO) visa. The applicant is a young man who was born on 6 May 1985 and who came to Australia on 5 May 2001. On 6 June 2001 he was granted the first of several student visas, the last of which expired on 15 March 2003. He did not reapply for a student visa, instead on 9 May 2003 he applied for the Class AO visa which application is the subject of these reasons.
At the time the visa application was lodged the applicant advanced claims under sub-class 832 (close ties). He did not meet the criteria for the other sub-class 831 (prospective marriage spouse). The relevant criteria which the applicant was required to satisfy under Reg. 832 are set out below:
“832.21 (1) Criteria to be satisfied at time of application
832.211 (1) The applicant meets the requirements of subclause (2) or (3).
(2) An applicant meets the requirements of this subclause if the applicant:
(a) is the holder of a substantive visa, other than a Subclass 771 (Transit) visa; or
(b)is not the holder of a substantive visa, and immediately before ceasing to hold a substantive visa, was not the holder of a Subclass 771 (Transit) visa.
(3) An applicant meets the requirements of this subclause if:
(a) the applicant:
(i) is a person who:
(A) was in Australia on 1 September 1994; and
(B)was, immediately before 1 September 1994, a person to whom section 37 of the Act as in force immediately before that date applied; and
(C) has not been granted a substantive visa on or after 1 September 1994; or
(ii) is a person to whom section 48 of the Act applies; and
(b)the applicant has not been refused a visa or had a visa cancelled under section 501 of the Act; and
(c) the applicant:
(i)first entered Australia before the applicant turned 18, as a member of a family unit; and
(ii)was accompanied by the family unit when the applicant first entered Australia; and
(iii) has turned 18; and
(iv)before turning 18, spent the greater part of the period that the Minister regards as the applicant’s formative years in Australia; and
(v) ceased to hold an entry permit or a substantive visa before turning 18; and
(vi)immediately before ceasing to hold a substantive visa, did not hold a Subclass 771 (Transit) visa; and
(vii)is no longer a member of, and does not reside with, the family unit with which the applicant first entered Australia.
832.212(1) If the applicant meets the requirements in subclause 832.211 (2), the applicant meets the requirements of subclause (2), (4) or (5).
(2)A person meets the requirements of this subclause if he or she last entered Australia before 1 January 1975.
[Subclause 832.212(3) was omitted by SR62 of 2000, with effect from 1 July 2000.]
(4) An applicant meets the requirements of this subclause if the applicant:
(a)first entered Australia before the applicant turned 18, as a member of a family unit; and
(b) was accompanied by the family unit when the applicant first entered Australia; and
(c) has turned 18; and
(d)before turning 18, spent the greater part of the period that the Minister regards as the applicant’s formative years in Australia; and
(e) ceased to hold an entry permit or a substantive visa before turning 18; and
(f)is no longer a member of, and does not reside with, the family unit with which the applicant first entered 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 151.21.”
It is common ground that the applicant met the criteria in 832.211(2)(b) and was therefore permitted to be considered against the criteria set out in 832.212. He did not meet the criteria in 832.212(2) or (5) but he claimed that he met the criteria contained in 832.212(4). The decision under review by this court was a decision in relation to sub-regulation 832.212(4)(d) the Tribunal considering that the applicant had not spent a greater part of his formative years in Australia.
Mr Kim was 16 years of age when he arrived in Australia. He came with his father, having spent all of his previous life in Korea. He undertook a short English language course and then enrolled as a student at South Strathfield High School on 12 October 2001. He was still there on his 18th birthday and remained enrolled at the school until 16 February 2004 [CB 101], although as he enrolled as a full time student with the Information Technology Training Institute on 27 January 2004 it is more probable that he left South Strathfield at the end of the 2003 academic year after completing year 11. During the Christmas holidays December 2001 to January 2002 he returned to Korea. Otherwise, he has remained in Australia living in a unit with his brother, the rent for which is paid by his parents. He has aunts in Australia. The applicant provided to the Tribunal representations from his migration agent, letters from nine people reflecting the range of relationships and connections that he has established during his time in Australia, including confirmation of his membership and attendance at the Sydney Korean Uniting Church.
In the Tribunal’s findings and reasons at [CB 180] it set out a substantial section of the PAM 3 advice to decision makers on the interpretation of sub-regulation 832.212(4)(d) which requires that an applicant must have spent the greater part of his formative years before turning 18 in Australia.
The Tribunal was sensible of the fact that by any mathematical calculation even excluding the first five years of life, it could not be said that the applicant had spent the greater part of his formative years in Australia unless, “formative years” could bear an interpretation which, in the case of this particular applicant, leaned heavily on his late adolescence.
The Tribunal when considering the facts put to it by the applicant in support of his submission that he had spent the greater part of his formative years in Australia was informed not only by PAM 3 but also through the submissions of his advisors of the decision of Lindgren J in Nafeh v Minister for Immigration [2004] FCA 199 in which his Honour set out his understanding of the expression:
“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.”
When the matter went on appeal to the Full Bench their Honours said:
“4 In this appeal the appellant challenges the conclusions of the primary Judge and, indirectly, the approach of the MRT. It is to be recalled that the criterion requires the MRT (acting as if the Minister) to consider what it regards as an applicant's formative years and whether an applicant has spent the greater part of the period constituted by those years in Australia. However, 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. Necessarily, the criterion raises issues, both temporal and personal to an applicant, which by their nature, are not susceptible of any rigid or concrete delineation or definition. Moreover the criterion is based on an assessment by the MRT referring, as it does, to what the "Minister regards as".
5 It would be fanciful, in our view, to suggest that the application of the criterion will, in every case, require the decision maker to identify with any precision what was the period of the formative years of an applicant and then identify, again with precision, what of it was spent in Australia and what of it was spent outside Australia. If, for example, an applicant was in Australia only for the week preceding his or her eighteenth birthday, it would almost certainly be unnecessary for the decision maker to traverse the factual circumstances of the applicant in the preceding decade, to be satisfied that the criterion was not met. While, in this case, the time spent by the appellant in Australia was of a different order, the approach of the MRT was one which, nonetheless, was open to it.”
The question raised by the amended application in this case is whether or not:
“1. The Tribunal failed to address the applicant’s case, that his sense of self awareness and personal identity were formed in Australia.
2. The Tribunal failed to ask itself a question which it had to ask if it were to address the criteria in migration regs, sch. 2 sub paragraph 832.212(4)(d), those being when and where the applicant’s sense of personal identity and self awareness were formed.”
I think it is clear from the dicta of Lindgren J and the Full Bench that the time spent by an applicant in Australia is still an important indicia of the calculation. In this particular case the Tribunal discusses formative years in the context of the PAM between [27] and [32] – [CB 180-181]. It then goes on to discuss the visa applicant’s years in Korea and compares them in another section with the visa applicant’s one year and eleven months in Australia at [36]-[47] of the decision [CB 182-184]. The section on Korea does appear to concentrate on whether or not the applicant formed “a sense of identity with Australian culture” and concluded that he did not. The section on the applicant’s one year and eleven months in Australia also looked at the ties which the applicant claimed he had made with this country but did go further. It discusses the applicant’s continued connection and dependance upon his parents and the reasons why he did not seek a further student visa after his expired but made the application which was then before the Tribunal. The first response the applicant made indicated that the decision was one taken by his parents rather than by himself [42 at CB 183]. The Tribunal then discusses a statement provided by the applicant after the Tribunal hearing at which he attempted to “explain” the confusion in his responses. The Tribunal assesses the later statement and comes to the conclusion:
“The Tribunal does not accept that the visa applicant and his parents did not understand the Australian visa system or that they forgot that the visa applicant’s visa ceased in March 2003. The visa applicant’s account provided at the hearing was in response to several questions by the Tribunal and the visa applicant stated at the end of the hearing that he had understood every question. For these reasons the Tribunal does not accept the statement.”
The Tribunal came to the conclusion that the applicant was still very much influenced by his parents who provided all the necessary funding for his activities including his flat in Strathfield. To my mind this analysis encompasses a consideration of the applicant’s sense of self awareness and personal identity. In the conclusion the Tribunal says:
“Whilst the visa applicant has less parental control in Australia and may consider he has more individuality here it is nonetheless the case that he has continued to abide by his parent’s wishes and has been fully financially supported by them and his parents decided he should study in Australia as his older brother was doing.”
The reference to individuality is a reference to personal identity and I conclude from the way in which the Tribunal expresses its views that it took the view that the applicant was still very much a “Korean” in terms of his personal identity. I am satisfied from the manner in which the Nafeh case was brought to its attention by the applicant’s advisors [CB160-161] that when the Tribunal came to consider what constituted the applicant’s formative years it did understand that it had to consider the time when the applicant’s sense of self awareness and personal identity were formed and it therefore did not fail in the Peko Wallsend sense (Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1985-1986) 162 CLR 24 at [39]) to take into account a relevant consideration.
In the circumstances the application shall be dismissed. The applicant must pay the respondent’s costs which I assess in the sum of $5,000.00.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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