Nafeh v Minister for Immigration & Multicultural & Indigenous Affairs

REASONING OF THE MRT 9 The MRT referred to a Procedures Advice Manual 3 ('PAM3') of the Department of Immigration and Multicultural and Indigenous Affairs, which stated in relation to the expression 'formative years', as follows: 'Formative years does not have legislated meaning. The following guidelines provide policy interpretation of this term. A person who has spent the greater part of their life in Australia between the ages of 5 and 18 may, without further enquiry, be regarded as satisfying this criterion. However, in all other cases, the period which constitutes the applicant's formative years will depend on that person's particular circumstances. The wording of this criterion reflects policy that assessment not be based on mere mathematical calculation. Nor (except as indicated in paragraph 2 above) is the test simply whether the person was in Australia for the greater part of their youth. Rather, officers should keep in mind 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; and · greater weight should be given to where persons spend 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, officers should not attempt to define a person's formative years by reference to the extent, if any, that the person has become part of the mainstream Australian society (however that term is understood).' 10 In its reasons for decision, the MRT stated (at [21] and [22]): '21. Policy guidance concerning the interpretation of formative years is that 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. However, in other cases the period constituting the applicant's formative years will depend on that person's particular circumstances. 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. 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). 22. The question of whether an applicant has, before turning 18, spent the greater part of their formative years in Australia therefore appears to contemplate an examination of qualitative factors, including the child's development of a sense of cultural or emotional identity.' 11 The MRT noted (at [23]) that:

• Mr Nafeh was born in Pakistan, travelled to Saudi Arabia with his parents shortly after his birth, and lived there until he travelled to Australia in September 1995;
• he spent approximately one month in Australia in September/October 1995, visiting his uncle;
• he then returned with his family to Saudi Arabia where he lived for some three months;
• he then returned to Australia in late January 1996;
• during 1996 he undertook Year 12 studies at Punchbowl Boys High School; and
• he commenced TAFE studies in early 1997, at around the time when he turned 18 (8 March 1997). 12 In summarising, the MRT noted that Mr Nafeh had spent approximately one year and three months in Australia before turning 18. The MRT noted that this meant that Mr Nafeh had not spent the greater part of his life between the ages of 5 and 18 in Australia, and that his particular circumstances in that period would have to be considered. The MRT undertook that task as follows (at [24]-[28]): '24. The evidence is that the visa applicant lived with his family as part of the expatriate community in Saudi Arabia. He attended British and Canadian (and possibly American) private schools for the first 5 years of his schooling, and then the Pakistani International School from year 6 until nearly the end of year 11. The visa applicant gave evidence of the restrictive nature of his life in Saudi Arabia. But he also gave evidence of the way his family adapted their lifestyle to the circumstances they were in, and his awareness that they were part of a different set of cultural and social values than those that appeared to prevail in Saudi Arabia. The visa applicant gave evidence that he and his family had extensive contact with other expatriate groups in Saudi Arabia, in particular the Pakistani community. His schooling from year 6 followed the Pakistani curriculum. He and his family visited Pakistan or India annually. The visa applicant gave evidence of his awareness of his parent's tolerance of people from different countries and religions, and the family's ongoing ties to 2 countries, India from his mother's side, and Pakistan from his father's side.

25. The Tribunal is satisfied that as a result of his family environment and living in an expatriate community, the visa applicant had developed a significant sense of his cultural and religious values before coming to Australia. The Tribunal is not satisfied that the fact that he and his family found life in Saudi Arabia restrictive, establishes that those years he spent there were not formative.
26. The Tribunal has considered the evidence of the period the visa applicant spent in Australia before turning 18. The Tribunal acknowledges that this period, largely covered by the time he undertook year 12 studies, was a significant period for the visa applicant, and has contributed to his development. The evidence provided by friends, former teachers, and his brothers indicate the positive effect of the time he has spent in Australia. The Tribunal has had regard to this evidence, but is not satisfied that it establishes that the period in Australia before the visa applicant turned 18 was the greater part of his formative years.
27. The Tribunal has had regard to the opinion of Dr Goyer, a psychiatrist. Dr Goyer has given an opinion, drawing on Erik Erikson's theories of socio-emotional development of children and teenagers, that the period between 16 and 18 that the visa applicant spent in Australia is the most important period in his development. The Tribunal has noted that opinion, but has also noted that Dr Goyer's letter contains other evidence of the influential role the visa applicant's parents played in his life style, his cultural and social values, and his positive sense of himself. The Tribunal finds that this evidence is consistent with the visa applicant's own evidence of the positive and significant influence of his parents during the time he lived in Saudi Arabia. The Tribunal is not satisfied that Dr Goyer's opinion, together with other evidence of the visa applicant's time in Australia, establishes that the greater part of his formative years were spent in Australia.
28. The Tribunal has also had regard to the evidence that the visa applicant has developed significant ties to Australia in the total period that he had lived here. But the policy guidelines caution against defining the applicant's formative years by reference to the extent that the person has become part of mainstream Australian society. The Tribunal finds that at the time of application, the visa applicant's sense of identity, and values, had been critically shaped by the period he lived in Saudi Arabia with his family. The Tribunal acknowledges that the period he spent in Australia before turning 18 was also significant. Having regard to all the evidence, however, the Tribunal is not satisfied that before turning 18, the visa applicant spent the greater part of the period that the Minister regards as the applicant's formative years in Australia.'

REASONING ON THE PRESENT APPLICATION 13 The adjective 'formative' is defined in the Macquarie Dictionary as follows: '1. giving form or shape; forming; shaping; fashioning; moulding. 2. relating to formation or development: …' The Oxford English Dictionary defines the adjective 'formative', relevantly, as follows: '1. Capable of forming or creating; serving to fashion. b Of or pertaining to formation; …' 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. 19 I do not perceive any inconsistency between my approach to the construction of the Criterion outlined above and anything said by Whitlam J in Khan v Minister for Immigration & Ethnic Affairs (1994) 35 ALD 47 at 51 in relation to the expression; 'before turning 18, spent the greater part of the period that the Minister regards as the applicant's formative years in Australia' in subcl 806.721(6) of Schedule 2 to the Migration (1993) Regulations. 20 In the present case, Mr Nafeh turned 18 on 8 March 1997. He had completed Year 12 at Punchbowl Boys High School in 1996, his Higher School Certificate having been issued on 7 January 1997. Apparently he had just enrolled at the Southern Sydney Institute of TAFE NSW for the Certificate III in Information Technology, a course that he successfully completed in December 1997. 21 What was the period of years over which Mr Nafeh was formed? It would only be if we could say that Mr Nafeh's formative years did not extend backwards further than two years and five months from his eighteenth birthday, that he could satisfy the Criterion. This is so because he spent only approximately one year and two and a half months in Australia before his eighteenth birthday as follows: 24 September 1995 - 28 October 1995: 1 month and 4 days 26 January 1996 - 8 March 1997 1 year, 1 month and 11 days

Total 1 year, 2 months and 15 days 22 The period of two years and five months mentioned began in early October 1994, when Mr Nafeh was fifteen years and seven months old. 23 Mr Nafeh's submission has to be that the MRT was required to regard the long period which Mr Nafeh spent in Saudi Arabia as a period of something less than one year and two and a half months of his formative years. 24 Even Dr Liz Goyer, Consultant Psychiatrist and Psychogeriatrician, whose report dated 14 October 2002 on Mr Nafeh was before the MRT, did not go so far as to say that the years spent in Saudi Arabia were not 'formative'. She stated: 'Even though Mohamed only spent two years of the formative years in Australia in my opinion these are the two most important years in terms of forming an identity.' Likewise, counsel for Mr Nafeh does not submit that his client's only formative years were those spent in Australia. 25 Dr Goyer and counsel for Mr Nafeh emphasise that Mr Nafeh's life in Saudi Arabia was very confined, both geographically and emotionally, and that he was considered in that country to be a second-class resident and had limited rights and experiences. Dr Goyer pointed out that Mr Nafeh was confined to certain schools and areas and was not allowed part-time jobs and had very little contact with Saudi nationals. She stated: 'Mohamed's self esteem and identity could not have developed positively in this environment.' 26 The MRT acknowledged the formative importance of the relatively short period Mr Nafeh had spent in Australia immediately preceding his eighteenth birthday. However, it thought that the years spent in Saudi Arabia had also been formative, not so much in terms of the influence of Saudi Arabian society, but because of his family, schooling and contact with expatriate groups, in particular, the Pakistani community in Saudi Arabia (see [24]-[28] set out at [12] above). 27 I do not think that the MRT was required, as counsel for Mr Nafeh seemed to suggest, to confine its attention to Mr Nafeh's 'Australianness'. A broader concept is involved. Following PAM3, the MRT referred to a sense of identity and awareness of a connection with a place in the world. "Australianness" may be part of a person's sense of identity and of connection with a place in the world, but it is not the whole of it. So, in the present case, the period of one year and two and a half months spent in Australia was clearly to be taken into account as part of the period of Mr Nafeh's formative years, but it was not the only period that was to be taken into account. 28 Counsel for Mr Nafeh sought to emphasise 'acculturation' which he defined as the 'process of taking on or identifying with a culture as one's own'. He submitted that this concept would include 'issues' such as: ' • language; · education; · social norms and mores; · whether and how the family culture conforms to the dominant culture of the country; · identification with and participation in the popular culture of the country; · whether and to what extent a person sees society as needing to be structured along non-secular lines; and · to what extent have political concepts such as the freedom and values of liberal democratic principles been internalised as basic necessities.' Some of these elements suggest a departure from the statutory general notion in favour of a more limited test of cultural assimilation. 29 In the present case, it is relevant to inquire as to the period of years which formed Mr Nafeh's language, religion, moral sense, awareness of family connection, awareness of racial identity and cultural identification and practices. No doubt the period of one year two and a half months spent in Australia before he turned 18 contributed in some or all of these respects, but the MRT justifiably thought that much of the period spent in Saudi Arabia did so too. 30 The Criterion raised a question of fact for the MRT. I do not think the MRT erred in not being satisfied that, before turning eighteen, Mr Nafeh had spent in Australia the greater part of the period that the Minister regarded as his formative years. CONCLUSION 31 For the above reasons, the application should be dismissed with costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.