Nafeh v Minister for Immigration & Multicultural & Indigenous Affairs

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.