El Mourani v Minister for Immigration and Citizenship

In the Federal Court of Australia, Fadi El Mourani sought leave to appeal from a decision of the Federal Magistrates Court, which dismissed his application for judicial review of a decision of the Migration Review Tribunal. The Tribunal had found that it did not have jurisdiction to review a delegate’s decision to refuse to grant the applicant a Child (Residence) (Class BT) visa under the Migration Act 1958 (Cth). The Tribunal’s decision was based on the finding that the application for review was not accompanied by the prescribed fee as required by the Migration Regulations 1994 (Cth). The applicant argued that the Tribunal misunderstood his financial hardship and failed to properly consider the evidence on the file. The first respondent objected to the competency of the appeal on the basis that the applicant had not sought leave to appeal from an interlocutory judgment of the Federal Magistrates Court. The Court accepted that the application should be treated as an application for leave to appeal. The test for the grant of leave to appeal is well known, and in this case, the decision of the federal magistrate was not attended with sufficient doubt to warrant a grant of leave to appeal. The Court found that the Tribunal properly considered the applicant’s application for a waiver of the prescribed fee and that the decision was not attended with sufficient doubt to warrant a grant of leave to appeal. The application for leave to appeal was refused.
The Court dismissed the application for leave to appeal.