Bel Kacem v Minister for Immigration
[2005] FMCA 1858
•14 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BEL KACEM v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1858 |
| MIGRATION – Review of decision by Migration Review Tribunal – student visa application – compliance with Regulations requiring Tribunal to be satisfied that applicant could meet expenses related to tuition and that applicant’s funds were from an acceptable source – whether applicant’s shareholding in company in Morocco is funds from an acceptable source for the purposes of Clause 5A508. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.357A; 359A; 474 |
| Applicant: | MOHAMED BEL KACEM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG3142 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 14 December 2005 |
| Date of Last Submission: | 14 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2005 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr J.D. Smith |
| Solicitors for the Respondent: | Ms E. Warner, Australian Government Solicitor |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Migration Review Tribunal.
That the Migration Review Tribunal be joined as Second Respondent.
The applications filed by the Applicant in this Court are dismissed.
That the Applicant pay the First’s Respondent’s costs in an amount of $4,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3412 of 2004
| MOHAMED BEL KACEM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) (and see s.475A of the Migration Act 1958 (Cth) (“the Act”)) for judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) to affirm the decision of the Department of Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a Student (Temporary) (Class TU) visa.
The Applicant is a national of Morocco, born on 25 December 1964, and arrived in Australia on 13 December 2000, as the holder of a Student (Temporary) Class TU 560 visa.
He applied for a Student (Temporary) Class TU subclass 572 visa on 10 October 2002.
On 15 January 2003, the Department refused the Applicant’s application for a Student (Temporary) Class TU subclass 572 visa.
On 21 January 2003, the Applicant lodged an application for review by the Tribunal. At the time of the decision the Applicant had completed the course for which he had applied for the subclass 572 visa. However the Applicant applied before the Tribunal to study a Bachelor of Information Technology at Charles Sturt University. Accordingly, the Tribunal proceeded to assess the Applicant under subclass 573, being the subclass relating to the Higher Education sector.
On 29 October 2004, the Tribunal handed down its decision affirming the decision of the Department that the applicant is not entitled to the grant of the visa on the basis that the Applicant’s application did not meet the requirements of regulation 573.223 as specified in Clause 5A508 of the Migration Regulations.
Regulation 573.223 and clause 5A508 are set out as follows:
“573.223(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 573 and the assessments level to which the applicant is subject, in relation to:
(i) the applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake; and
(ii) the financial capacity of the applicant to undertake each of those courses of study without contravening any condition of the visa relating to work; and
(iii) other requirements under Schedule 5A; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter.
Clause5A508. Financial capacity
5A508(1) The applicant must give:
(a)evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the full period:
(i)course fees;
(ii)living costs;
(iii)schools costs; and
(b)evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and
(c)evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.
(2)In this clause, funds from an acceptable source means one or more of the following:
(a)a money deposit that the applicant or an individual who is providing support to the applicant has held for at least the 3 months immediately before the date of the application;
(b)a loan from a financial institution made to, and held in the name of, the applicant or an individual who is providing support to the applicant;
(c)a loan from the government of the applicant’s home country;
(d)financial support (such as a scholarship) from:
(i) the applicant’s proposed education provider; or
(ii) the Commonwealth Government, or the government of a State or Territory; or
(iii) the government of a foreign country; or
(iv) a corporation that:
(A)conducts commercial activities outside the country in which it is based; and
(B)employs the applicant in a role in relation to which the applicant’s principal course is of direct relevance; or
(v) a multilateral agency”
On 22 November 2004, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Pursuant to Short Minutes of Order made on 3 December 2004, the Applicant filed an Amended Application on 20 April 2005. The grounds are dealt with below.
The Applicant was unrepresented before this Court this morning and did not require the services of an interpreter.
Ground 1 – The Tribunal denied the Applicant procedural fairness and Natural Justice and thereby committed a jurisdictional error
The Applicant provided no particulars of this ground and made no oral submissions in support, despite having the ground read to him and being invited to expand upon this ground.
Section 357A of the Act is applicable to the Tribunal’s decision and provides an exhaustive statement of the natural justice hearing rule. Relevantly, pursuant to s.359A of the Act the Tribunal must give particulars in writing to the Applicant of any information that the Tribunal considers would be the reason or a part of the reason for a affirming the decision under review, ensure as far as is reasonably practicable that the Applicant understands why it is relevant to the review and invite the Applicant to comment on it.
On 8 December 2003, the Tribunal wrote to the Applicant inviting him to comment on information received by the Tribunal and pursuant to which the Tribunal determined that the Applicant’s expenses, pursuant to clause 5A508(1)(a) totalled $19,497. The Tribunal observed that the Applicant’s evidence of funds held by him in a bank account were insufficient to cover the cost of his course, Further, the Tribunal noted that the Applicant had not provided evidence that these funds were available to him as at 10 July 2002. The Tribunal informed the Applicant in that letter that he must have sufficient funds to cover the course at least 3 months prior to lodgement of the visa application. The Tribunal also pointed out that there was insufficient evidence to demonstrate exactly where these funds came from. The letter stated that the Regulations to the Act, required that, in relation to the class of visa applied for, that the Applicant needed to provide evidence of his financial capacity to undertake the course. The letter stated that the Applicant was required to satisfy the Tribunal that he had access to funds from an acceptable course that were sufficient to meet his expenses for the full period of his study and that those funds had been held by him for at least the 3 months immediately before the date of the application.
On 25 December 2003, the Applicant responded to that invitation to comment.
On 6 February 2004, the Tribunal wrote to the Applicant inviting him to attend a hearing at which he may give evidence and present arguments. The Applicant responded to the invitation to attend the hearing on 16 March 2004, confirming that he would appear before the Tribunal. The Applicant gave evidence before the Tribunal, on 16 March 2004, and provided evidence of the cost of the course Bachelor of Information Technology at Sturt University for which he had been accepted. The document dated 18 February 2004, identified the tuition costs as $19,800.
Following the hearing, the applicant provided the Tribunal with a document that he was a 40% shareholder in a company in Morocco. He provided a certificate valuing his shares at approximately $40,000 US dollars.
On 27 July 2004, the Tribunal wrote to the Applicant inviting him to comment on the fact that the Tribunal had now determined his expenses as $36,532 taking into account the new tuition costs of $19,800.00. The Tribunal noted that the Applicant’s certificate of shareholding was not evidence of funds from an acceptable source. The Tribunal pointed out to the Applicant that unless it was satisfied that the Applicant’s funds were from an acceptable source the Tribunal would be obliged to affirm the decision under review.
On 30 August 2004, the Tribunal wrote to the Applicant extending the period of time for him to provide comments to its letter dated 27 July 2004. The letter noted that if the Tribunal did not receive any comments within 28 days then it may proceed to make a decision on the review without taking any further action to obtain the Applicant’s comment. The Applicant responded to the Tribunal’s letter and provided some further information.
On 12 October 2004, the Tribunal invited the applicant to the handing down of its decision dated 29 October 2004.
There is no suggestion that the hearing conducted by the Tribunal was anything other than a proper hearing.
The Tribunal complied with all statutory requirements in the conduct of its review.
Accordingly, there is no denial of procedural fairness and this ground is rejected.
Ground 2a – The Tribunal acted in bad faith in that, from the outset of the Applicant’s application for a student visa, he claimed to meet the requirements for the grant of a study visa but the Tribunal denied the Applicant’s right to stay and study here in Australia
The Applicant provided no particulars of this ground and made no oral submissions in support, despite having the ground read to him and being invited to expand upon this ground.
This ground appears to be seeking merits review which this Court cannot conduct.
Accordingly, this ground is rejected.
Ground 2b – The Tribunal acted in bad faith in that the Delegate refused the Applicant’s student visa because the Applicant did not satisfy Regulation 573.223 of the Act. The Applicant contended that the Delegate and the Tribunal denied the Applicant natural justice by not exercising its discretion
The visa sought by the Applicant was a subclass 573 visa which required the criteria provided in Regulation 573.221 to be satisfied at the time of decision.
Regulation 573.221 obliged the Applicant to satisfy the criteria, relevantly, of Regulation 573.223.
Regulation 573.223(1) relevantly, requires the Tribunal to be satisfied that the Applicant is a genuine Applicant for entry and stay as a student because he meets the requirements of subclause (2). Subclause (2) states that the applicant will have met those requirements if it provides evidence to the Tribunal in accordance with the requirements, relevantly, of Clause 5A508 of Schedule 5A.
Relevantly, Clause 5A508(1)(a) obliges the applicant to give evidence that the Applicant has funds from an acceptable source that are sufficient to meet his expenses, determined by the Tribunal to be $36,357.
Clause 5A508(2) states that “funds from an acceptable source” means one or more, relevantly, of a money deposit that the applicant has held for at least 3 months immediately before the date of the application, a loan from a financial institution in the name of the applicant, a loan from the government of the applicant’s own country or financial support (such as a scholarship) from, relevantly, the applicant’s proposed education provider, the Australian or State government, the government of a foreign country, or a corporation that conducts commercial activities outside the country in which it is based and employs the applicant in a role in relation to which the applicant’s principle course is of direct relevance.
The total of the funds identified by the Applicant as a money deposit were in the order of $15,000. Plainly that sum alone is insufficient to meet the relevant expenses determined to be in the order of $36,000.
The Applicant also provided evidence of a short term loan of $3,000 from a friend, in accordance with a document dated 15 October 2000. However, that loan does not satisfy the criteria, referred to in clause 5A508(2) as “funds from an acceptable source”, in that it is not a money deposit, a loan from a financial institution, a loan from the government of the applicant’s home country or financial support from the applicant’s proposed education provider, the Commonwealth or a State of Australia, the government of a foreign country or a corporation.
That finding is a finding fact and was plainly open to the Tribunal on the material before it.
The Tribunal found that the shareholding by the Applicant in a Moroccan company was also not “funds from an acceptable source” in that, it is not a loan from a financial institution, a loan from the government of the applicant’s home country or financial support from the applicant’s proposed education provider, the Commonwealth or a State of Australia, the government of a foreign country or a corporation.
The Tribunal considered whether the holding of shares was “a money deposit”. The Tribunal noted that clause 5A101 defines a ‘money deposit’ as “a money deposit with a financial institution”.
Clause 5A101 states that a “financial institution” means a body corporate that as part of its normal activities, takes money on deposit and makes advances of money and does so under a regulatory regime, governed by the central bank of the country of which it operates, and in respect of which the Tribunal is satisfied that effective credential assurance exists.
The Tribunal noted that there was no evidence before it that the holding of shares by the applicant was a money deposit with a financial institution as defined in clause 5A101.
Accordingly, the Tribunal found that there was no evidence before it to show that the Applicant had sufficient funds available for at least 3 months prior to the lodgement of the visa application.
Further, the Tribunal found that the Applicant’s evidence of financial capacity indicated that he did not have sufficient funds from an acceptable source to meet the specified expenses for the full period of his stay in Australia.
For those reasons, the Tribunal found that the Applicant did not satisfy clause 5A508, being one of the requirements of Regulation 573.223(2).
Those findings are findings of fact and were open to the Tribunal on the material before it.
To the extent that this ground refers to conduct of the Delegate it is misconceived and rejected.
Accordingly, this ground is rejected.
Ground 2c – The Tribunal acted on bad faith in that it failed to consider the Applicant’s required tuition fees for the proposed study period and thus failed to consider the change of circumstances at the time of initial study and further study requirements as per Migration Regulations and thus committed jurisdictional error and denial of natural justice
To the extent that this ground refers to a failure by the Tribunal to consider the Applicant’s required tuition fees for the proposed study period, the finding of the Tribunal that the course fees were $19,800 in respect of the Applicant’s proposed course of study. That finding was in accordance with the document, dated 18 February 2004, and which was furnished by the Applicant to the Tribunal subsequent to the hearing. Accordingly, to the extent this ground contends that the Tribunal failed to consider the Applicant’s tuition fees, this ground is not made out.
To the extent that this ground relies on the change of circumstances at the time of initial study, the Applicant was obliged to comply with the requirements of Regulation 573.223 in respect of his visa application, the subject of the proceeding before this Court. Any change of circumstance between when the Applicant was first granted a visa and the visa application the subject of this proceeding is irrelevant.
Accordingly, this ground is rejected.
Ground 2d – The Tribunal acted in bad faith in that:
(i) it failed to consider the restrictions in Morocco relating to the transfer of money overseas.
(ii) the Tribunal did not exercise its discretion pursuant to the Migration Act, Regulations and PAM-3 guideline.
(iii) the Applicant claims that significant weight should be given to him because of his initial visa, its extension and the fact that requirements were significantly changed by the Australian Government
In relation to (i) the Tribunal was obliged to be satisfied that the necessary requirements of the visa applied for by the Applicant were met pursuant, relevantly, to Regulation 573.223(2), which requires the Applicant to give to the Tribunal evidence in accordance with the requirements relevantly of clause 5A508(1) and (2). It is irrelevant to those considerations that there may be restrictions in Morocco relating to the transfer of money overseas.
Accordingly, this ground is rejected.
In relation (ii), no material was provided by the Applicant at the hearing in respect of PAM-3 guideline. In any event, whatever is contained in the guideline cannot fetter the statutory requirement for compliance with Regulation 573.223, which I have addressed above.
Accordingly, this ground is rejected.
In relation to (iii), as referred to above, the Applicant is obliged to satisfy the criteria required by the statutory regime, referred to above, relevant to his application for the visa, the subject of these proceedings.
Accordingly, this ground is rejected.
Ground 2e – The Tribunal acted in bad faith because the decision was influenced by the Delegate’s decision and therefore erred at law in failing to consider the Applicant’s subjective state of mind in considering whether or not the Applicant had satisfied the criteria for the grant of a student visa. The state of mind which exists is an objective and a subjective element. Failing to consider one of those elements is an error of law because the Tribunal has not properly performed its duty in ascertaining whether or not the applicant satisfies the relevant criteria
This ground is misconceived as no question arises in the criteria of any subjective element, other than the question of whether the Applicant is a genuine student. However, Regulation 573.223(1) states that the Tribunal is satisfied that the Applicant is a genuine applicant for entry and stay as a student because he meets the requirements of subclause (2), as referred to and considered above in these Reasons.
Accordingly, this ground is rejected.
Conclusion
It is clear from the Tribunal’s decision that it properly understood and applied the relevant legislation and regulations. The findings made by the Tribunal in respect of its considerations of the relevant criteria were open to it on the evidence and material before it.
Accordingly, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The applications filed by the Applicant in this Court are dismissed with costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 14 December 2005
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