Alkhtib v Minister for Immigration
[2008] FMCA 1256
•27 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALKHTIB v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1256 |
| MIGRATION – Review of Migration Review Tribunal decision – student visa – where applicant’s evidence of financial situation did not meet requirement that funds be held for at least three months before date of application – where shortfall erroneously calculated by the Tribunal – no error of law. |
| Migration Act 1958, s.351 Migration Regulations 1994 |
| Applicant: | ZAKAREIA HOUSSEN ALKHTIB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 1127 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 27 August 2008 |
| Date of last submission: | 27 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2008 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent's costs assessed in the sum of $1,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1127 of 2008
| ZAKAREIA HOUSSEN ALKHTIB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is a most unfortunate matter. Mr Alkhtib wished to come into Australia for the purposes of study in 2005. He is a resident of Syria and made application to the nearest Consulate in Beirut. He is an educated young man. He speaks good English. He obtained a visa which allowed him to enter Australia for the purposes of undertaking certain courses, including a course to study the Advanced Diploma of Business Management and English for Academic Purposes, Elementary to Advanced. He tells me that when he went to the Consulate to pick up his visa he noticed that it was only issued for a period of three months. He questioned the Consulate and was told that when he arrived in Australia he should go the Department of Immigration and he would be "fixed up". He arrived in the country and immediately commenced the English course. He passed this in two weeks and then sought the full two year student (Temporary) class TU visa that he had applied for in Lebanon. He brought with him a large amount of money so that on 13 September 2005 he had $28,526.58 in a Commonwealth Bank Award Saver Account [CB 122].
When he applied for his visa he was asked to provide evidence of his financial situation in order to comply with Clause 5A408 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”) and Clause 572.223(2)(a)(i)(B). Those Regulations are set out in some detail within the court book and it is not necessary for the purposes of this decision to set them out here, but they require evidence that the applicant has sufficient funds to pay for his living expenses and his course fees for the period of the course, which in his case was two years.
Proof of the holding of the relevant funds is required to be a money deposit that the applicant has held for at least three months immediately before the date of the application. The money which the applicant had in the Commonwealth Bank was therefore not accepted because he had only put it into the bank on his arrival in Australia and that was very shortly before in his first application to the Department on 27 September 2005. A letter from the Department sent to the applicant on 22 September 2005 indicated that he was required to show that he had held $A27,000.00. The applicant provided evidence from his Commonwealth Bank account which showed that he had $28,000.00. For reasons which are unexplained the Department did not make a decision on the application until 16 May 2006. The application was then refused, the ground being that the applicant had not submitted evidence of the holding of $27,000.00 for a period of three months prior to his application. I am quite satisfied that this was a requirement and was not complied with.
The Applicant then sought a review from the Migration Review Tribunal on 5 June 2006. Because he had been refused the student visa he was unable to carry on with his course. He had therefore not completed 75% of the course by the time the Refugee Review Tribunal got around to hearing his case in May 2007.
When the matter came before the Tribunal the applicant was able to show that between himself and his brother, who for the purposes of the decision was considered to be a relevant person, an amount of $27,943.00 had been held for the appropriate period of time. But as the Tribunal explains in its decision at [CB 102] the amount needed by the applicant was $24,000.00 for his living expenses and the course fees of approximately $6,825.00, a total of $30,825.00. This the applicant could not show and the Tribunal, having no discretion in the matter even though the amount of the shortfall was small, upheld the delegate's decision. It was later revealed that the Tribunal had made an error in its calculations because it had not taken into account a deposit on the course fees which had been paid. This reduced the shortfall from approximately $5,000.00 to $2,382.00.
The Tribunal handed down its decision on 13 August 2007. The applicant sought advice and it was suggested to him that he apply to the Minister to exercise his powers under s.351 of Migration Act 1958 (the “Act”). He did so. Eventually, on 1 April 2008 he received a notification that the Minister had decided not to consider exercising his power. The applicant then made an application to this court for a review of the Tribunal decision.
In his helpful written submissions Mr Markus, who appears on behalf of the Minister, considers the grounds of review contained in the Application. The first ground is that the Tribunal failed to invite the applicant to comment on the funds. This ground is not particularised but there can be no doubt from the perusal of the court book that the applicant was well aware of the issues in his case and that those issues were the failure to have the relevant funds at the relevant time some two years before the Tribunal was being asked to make a decision.
The second ground was that the Tribunal erred in its calculations. It is clear that the Tribunal erred in its calculations because of its failure to take into account the deposit on the course fees but, as Mr Markus points out, that only reduces the shortfall, it does not wipe it out.
The third ground was that the delegate failed to invite comment on the requested information which the applicant provided. This is a review of the Tribunal's decision and not of the delegate's and this ground is not sustainable.
It follows from the above that I am unable to provide the applicant with the review he seeks. There is no discretion in this court as there was not in the Tribunal, to ameliorate the requirements of the Act and Regulations. But I must say that the applicant could justifiably argue that he has been unfairly treated. Firstly, he has remained in this country for three years, since he first arrived, awaiting decisions on his visa. He tells me that he has not worked because he is not permitted to do so and he has not studied because he is not permitted to do so. He has wasted two and a half years of his life because of a shortfall of $2,500.00. Whilst I fully understand that the Minister is not compellable to consider the applicant's request that the requirement of the visa be waived and he be provided with a more satisfactory decision than the Tribunal or the delegate was able to give him, I would respectfully request that if he should make a further application to the Minister for reconsideration that this request be sympathetically considered.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
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