Illankovan v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Migration Review Tribunal (MRT) made on 15 September 2004 by which the MRT affirmed a decision of a delegate of the respondent Minister that the applicant was not entitled to the grant of a Special Eligibility (Residence) (Class AO) visa. 2 The grounds of the application are: 'In determining whether the applicant before turning 18 had spent the greater part of his formative years in Australia (the criterion set forth in Clause 832.212(4)(c) of Schedule 2 of the Migration Regulations 1994) the MRT failed to consider relevant evidence before it to the extent that it made a jurisdictional error. Particulars (i) The MRT had before it evidence by way of a psychiatric report from Dr Gosia Wojnarowska dated 28 July 2004 ("the report") that gave an expert opinion that the applicant's adolescence had been spent in Australia and that during this period major developmental changes had occurred that had an impact on his personality, cognitive style and identity. (ii) The MRT made no reference to the report at all in its Decision Record and gave no reasons as to why it had disregarded the report. (iii) The MRT had before it evidence from Gavin Storey and Michael Lim that was relevant in determining whether the greater part of the applicant's formative years had been spent in Australia. (iv) The MRT made no reference to this evidence at all in its Decision Record and gave no reasons why it had disregarded this evidence. (v) The evidence before the MRT was sufficiently strong to determine that the applicant had spent the greater part of his formative years in Australia before turning 18.' 3 The applicant was born in India on 26 November 1980. He entered Australia on 29 September 1996, then aged 15 years and 10 months, as the holder of a Short Stay (Visitor) (Class TR) visa, subclass 676 (T1, F.61). 4 On 25 October 1996 he applied for a protection visa, but that application was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister). He sought a review of that decision in the Refugee Review Tribunal (RRT). 5 On 18 August 1998 the RRT affirmed the delegate's decision not to grant the applicant a protection visa. 6 He then applied to the High Court of Australia for judicial review of the decision of the RRT. An order was made by a Justice of the High Court transferring that application for judicial review to this Court. On 11 September 1999 the Federal Court dismissed the applicant's application. 7 The applicant has sought intervention by the Minister on four occasions. The last request for the Minister's intervention was declined on 1 March 2002. 8 Section 48 of the Migration Act 1958 (Cth) (the Act) limits the class of visa for which a non-citizen may apply if the non-citizen does not hold a substantive visa and was refused a visa other than the kind mentioned in s 48(1)(b). Because the applicant was refused a protection visa, the applicant is subject to the provisions of s 48. 9 Regulation 2.12 of the Migration Regulations 1994 (Cth) (the Regulations) prescribes the classes of visas which may be sought for persons who are subject to the provisions of s 48 of the Act. The applicant applied for one of the limited class of visas available to him, namely, a Special Eligibility (Residence) (Class AO) visa on 5 June 2002. 10 Regulation 2.12(1) and (2) provide: '(1) For section 48 of the Act (which limits further applications by a person whose visa has been cancelled, or whose application for a visa has been refused) the following classes of visas are prescribed: (a) subject to sub-regulation (2), Special Eligibility (Residence) (Class AO); (2) Paragraph (1)(a) applies to a person if he or she meets the requirements of sub-clause 832.211(3) of Schedule 2.' 11 Regulation 832 has been amended twice since the applicant applied for a Special Eligibility (Residence) (Class AO) visa but those amendments have no application to this applicant: Migration Amendment Regulations 2002 (No 10): Reg 4(2). 12 Regulation 832.21 specified the criteria which needed to be met for an applicant to be granted this class of visa. The criteria included the matters contained in Regulation 832.212 which were: (1) if the applicant meets the requirements in subclause 832.211(2), the applicant meets the requirements of subclauses (2), (4) or (5); (2) a person meets the requirements of this subclause if he or she last entered Australia before 1 January 1975; (3) not relevant; (4) an applicant meets the requirements of this subclause if the applicant: (a) has turned 18; and (b) ceased to hold an entry permit or 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 151.21. 13 There is no dispute that the applicant did not meet subclauses (2) or (5). Thus, he needed to meet the criteria provided for in subclause 832.212(4). 14 The Minister's delegate refused to grant the applicant a visa upon the ground that the applicant did not meet the requirements of clause 832.212(4) of Schedule 2 to the Regulations and the applicant was informed of this decision on 3 December 2003. 15 The applicant applied to the MRT on 19 December 2002 for a review of that decision. On 13 July 2004 the MRT conducted a hearing at which the applicant gave evidence, as did his uncle. On 15 September 2004 the MRT published its decision affirming the decision of the delegate of the Minister that the applicant is not entitled to the grant of a Special Eligibility (Residence) (Class AO) visa. 16 It is that decision which the applicant now seeks to have reviewed by this Court. 17 The applicant needed to establish, if he was to be entitled to the visa for which he applied, that he had turned 18 and ceased to hold an entry permit or a substantive visa before turning 18 and, before turning 18, spent the greater part of the period that the Minister regards as the applicant's formative years in Australia. 18 The applicant was 18 and had ceased to hold a substantive visa before turning 18. The question then before the MRT was whether, before turning 18, the applicant had spent the greater part of the period that the Minister regards as the applicant's formative years in Australia. 19 The applicant was born on 26 November 1980 in Sri Lanka. Shortly after he was born, the applicant and his family moved to Oman where they lived for approximately 4.5 years. In 1988 the family moved to Madras in India where they lived until 1992. In 1992 the family returned to Sri Lanka. The applicant's father died in that same year. The applicant remained with his family in Sri Lanka until the applicant left for Australia. During this period, the applicant completed Years 7 to 10 of his schooling and passed his 'O levels'. In 1993 the applicant's paternal grandparents moved to Australia and took up residence in Perth. On 28 September 1996 the applicant's paternal grandfather died in Australia. On the same date, the applicant was granted his Visitor's visa and left Sri Lanka to travel to Australia. As already indicated, he arrived in Australia on 29 September 1996. Thus, he spent two years and two months in Australia before turning 18. 20 The MRT referred to the evidence before it: '11. A hearing was conducted on 13 July 2004 at which the visa applicant gave sworn evidence. He was supported by his uncle with whom he lives and who also gave evidence. The visa applicant confirmed the foregoing facts and chronology of events; he stated that he came to Australia for the funeral of his grandfather who died on 28 September 1996. The visa applicant stated that the early years of his life were spent in Oman and Madras. At about the age of 11 and the family returned to Colombo and he spent the next 4 years at school in the Colombo and passed his O levels (the equivalent of year 10). He said that his father died in 1992 and his time in Colombo was difficult for him as he had to complete his education in English as his Tamil was not good. He was also required to make new friends in a new environment. It was not a happy time for him. He said that his mother still resides in Sri Lanka and he has a brother in the United Kingdom. 12. The visa applicant attended Willetton High School in Perth and completed years 11 and 12 at that school. He stated that he found the school environment very different in Australia. In Colombo it was very confined but in Australia he was more free and his peers and teachers were friendly and helpful. In Australia the students were encouraged to be self-motivated whereas in Sri Lanka they were more spoon-fed. He also found cultural differences in that certain topics were not discussed in Sri Lanka but were openly discussed in Australia. He said that his religion is nominally Hindi but he is not a great follower. He also said that his grandmother still speaks in Tamil but for the majority of the time he speaks English. He said that he has become more confident in Australia and more self dependent. 13. The uncle of the visa applicant also gave evidence, stating that the visa applicant came to Australia when he was 15 years of age and has developed between the ages of 15 and 18 when he was at high school. He has developed confidence and has been employed by his uncle. He has passed his T E E and has qualified to enter university and he has learned to drive a car.' 21 The MRT found that the applicant had been in Australia for two years and seven months before he attained the age of 18 years. That finding is wrong, but it is a finding advantageous to the applicant and cannot, therefore, be used to impugn the decision arrived at. 22 After making the findings to which I have referred, the MRT addressed the decisions of this Court in Nafeh v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 199 and that applicant's appeal to the Full Court of the Federal Court of Australia reported in [2004] FCAFC 232. 23 The MRT said: '23. If the Tribunal adopts the reasoning set out in paragraph 21 of the judgement above the formative years of the visa applicant would not extend backwards beyond 5 years and 2 months as the visa applicant was in Australia for 2 years and 7 months before his 18th birthday. The period of five years and two months began in late November 1993 when the visa applicant was 13 years of age. 24. The Tribunal accepts that the last two years which the visa applicant spent studying years 11 and 12 in Australia before he turned 18 years were very important to the formation of the visa applicant. There was no evidence however that the formative years only commenced after the visa applicant turned 13 years of age. The visa applicant himself gave evidence that he was educated and grew up in Oman, Madras and Sri Lanka before he came to Australia. Included in that period was four years schooling in Sri Lanka when he obtained his O levels. The Tribunal is not satisfied that the visa applicant spent the greater part of his formative years in Australia.' 24 The MRT did not specifically refer to other evidence adduced before it in the form of a statement of the applicant, a statement and a statutory declaration of Rama Krisna Somasunderam, who is a spokesman for the Tamil Association in Perth, a submission from Ms Farah Zarandion, a counsellor at the Catholic Migrant Centre, and a statutory declaration of a Mr Michael Lim. Nor did the MRT refer to a report of Dr Gosia Wojnarowska, a consultant psychiatrist dated 28 July 2004 or a report of Dr Suter, a psychologist dated 8 May 2002. 25 The applicant says that the failure by the MRT to address that evidence means that there was a constructive failure to exercise jurisdiction, jurisdictional error and, as a result, the decision of the MRT should be quashed. 26 The question for consideration by the MRT was whether the applicant spent the greater part of the period that the Minister regards as the applicant's formative years in Australia before he turned 18. 27 That requires a finding as to the length of time that the applicant spent in Australia before turning 18. That finding was made. As already indicated, the finding made was wrong, but to the applicant's advantage. 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 the his formative years in Australia. 28 It can be seen from the MRT's reasons that it asked itself the right question, being whether the applicant had, before turning 18, spent the greater part of the applicant's formative years in Australia. It carried out the appropriate exercise in considering whether the period in which the applicant had lived in Australia was the greater part of the applicant's formative years. 29 The respondent has argued that the evidence which the MRT did not address did not contradict any finding made by the MRT and, in those circumstances, it cannot be inferred that a failure to refer to that evidence did not mean that the MRT did not have regard to that evidence. 30 I think that submission is good in respect of some of the evidence to which I have referred. 31 The critical period over which the assessment had to be made ended when the applicant turned 18 and, having regard to the time in which the applicant spent in Australia, commenced when the applicant was 13 years and 8 months of age. 32 Mr Somasunderam has deposed in a statutory declaration, sworn on 28 May 2002, to his observations of the applicant over the preceding six years. It is not possible, on a reading of his evidence, to separate out the relevant period from the irrelevant period. In those circumstances, the evidence contained in his statutory declaration is irrelevant. He also offered a statement in which he recited his observations of the applicant after the applicant arrived in Australia in 1996. Again, however, it is impossible to identify which of those observations occurred during the relevant period. That statement is also, therefore, irrelevant. 33 Mr Lim's statutory declaration sworn on 28 May 2002 speaks of his observations of the applicant over the last one and a half years. Those observations are irrelevant because the applicant was then aged more than 20 years. 34 Farah Zarandion has been a Refugee Youth Counsellor with the Catholic Migrant Centre for the period between July 2001 and July 2004. 35 In her statement she does not say whether she knows the applicant but, in any event, she could not have known him before he was 20. 36 She does say that she works with refugee youths who are aged between 12 years and 20 years and: 'Within the age group that I work with, the most critical period is from 15 to 18 years. Many of the youth who arrive in Australia during these critical formative years initially have a particularly difficult time. These years are critical for the youth because they are forming their identity. Migration during this period can initially be disruptive for their identity formation. However, once the youth have overcome this obstacle, they have demonstrated to adapt successfully to their new environment. …' 37 She continues: 'When a young person from a difficult cultural background who enters Australia during the critical formative years (15-18 years of age), successfully adapts to the Australian culture and identifies themselves as an "Australian", is forced to return to their original culture, this can have a detrimental effect on the remainder of their life. …' 38 She concludes: 'Hence, in my opinion, as a Refugee Youth Counsellor and a Clinical Psychologist Trainee, whenever possible young people who have entered a culture during the critical formative years (15-18 years) should not be forced to return to their culture of origin.' 39 Her opinion assumes, without explaining, that the critical period of a youth's formative years is between 15 and 18. She does not provide any statement of her qualifications for providing that opinion or the basis of that opinion. In my opinion, that evidence, unexplained as it was, was also largely irrelevant. 40 The applicant also tendered a report of Dr Gosia Worjnarowska, consultant psychiatrist, dated 28 July 2004. 41 However, the respondent argued that Dr Wojnarowska's report did not specifically address the question before the MRT. I agree. The psychiatrist did not limit herself to the critical period but spoke of a period at one stage between the ages of 16 and 24 and another period to the age of 21. 42 She did not address the relevant question and the omission to refer to her report is not of any significance. 43 Dr Bryan Suter is a clinical psychologist who, on 8 May 2002, reported directly to the Department after conducting two clinical interviews with the applicant on 17 and 24 April 2002. 44 In his report, Dr Suter specifically addressed the question whether the applicant 'must have spent the greater part of his formative years before turning 18 in Australia'. 45 In addressing that question, Dr Suter wrote: 'In terms of Mr Illankovan's development of a sense of culture and personal identity, these will generally occur from the age of 13 through to young adulthood (early twenties). As Mr Illankovan was resident in Australia from the age of 15 (he is now 21) it is entirely consistent that the significant portion of his cultural, social and notion of personal identity as an adult occurred while in Australia where he was exposed to Australian norms and mores. He has incorporated these into his sense of "self" (identity), and if anything, has attempted to overcompensate in his assimilation to Australia for fear that he would be rejected by the regulatory authorities, striving for a sense of permanency, inclusiveness and stability within a peer group. He reports feeling "comfortable" in Australia, he is articulate, has excellent English literacy skills and is comfortable and familiar with Australian customs and idiosyncrasies, having completed his schooling in Perth. While he maintains strong links to the Sri Lankan community, this does not seem to have eroded his "sense of Australian identity".' 46 In my opinion, Dr Suter addressed the question that the MRT needed to answer. Indeed, that is the very reason why Dr Suter was consulted. In those circumstances, a failure to refer to his opinion is a significant omission. 47 Dr Suter's opinion, as mentioned above, is that the 'significant portion … occurred while in Australia'. 48 In my opinion, by 'significant portion' Dr Suter was referring to the period of time. I think that follows from the introduction to the sentence itself which talks of a period of time. The respondent's counsel argued that 'significant portion' in Dr Suter's opinion referred to the cultural, social and notion of personal identity but I reject that submission. 49 The applicant argued that it may be inferred that the failure by the MRT to refer to such a critical piece of evidence means that the evidence was overlooked. 50 The respondent argued that there was nothing in Dr Suter's opinion which was inconsistent with the MRT's own findings and, in those circumstances, no such inference should be drawn. For the reasons already given, I do not agree with the respondent's contention. 51 As I have already indicated, the purpose of obtaining a report from Dr Suter was to address the very question which the MRT needed to decide. 52 In my opinion, again as I have already said, Dr Suter addressed that question in the paragraph to which I have referred. His opinion could be said to contradict the MRT's conclusion. 53 The failure of the MRT to refer to Dr Suter's report leads me to conclude that the MRT overlooked the report. I have reached that conclusion, notwithstanding that the MRT said in its reasons that it had the following documents: 'T1 - MRT case file W03/00062, folio numbered 1-106. D1 - Departmental case file CLF2002/01466, folio numbered 1-202.' 54 Even though it appears the MRT had Dr Suter's report, I am satisfied that the MRT did not address the contents of it before arriving at the conclusions in paragraph 24 of its reasons. 55 It was conceded by the respondent that if I reached the conclusion that the MRT had overlooked Dr Suter's report, there has been a constructive failure to exercise jurisdiction and the relief sought should be granted. 56 The failure to refer to that critical evidence, in my opinion, suggests that that evidence was overlooked and not considered in the MRT's decision. 57 In my opinion, the failure to have regard to relevant evidence in this case means that the MRT failed to constructively exercise the jurisdiction given to it. 58 In those circumstances, the decision of the MRT should be quashed. There should be an order remitting the matter to the MRT for further hearing according to law. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.