Kaluthanthirige v Minister for Immigration and Citizenship

Case [2007] FCA 1783

FEDERAL COURT OF AUSTRALIA

Kaluthanthirige v Minister for Immigration and Citizenship [2007] FCA 1783

CHARITH MAHESH KALUTHANTHIRIGE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
VID 300 OF 2007

MIDDLETON J
7 NOVEMBER 2007
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 300 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

CHARITH MAHESH KALUTHANTHIRIGE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

MIDDLETON J

DATE OF ORDER:

7 NOVEMBER 2007

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs, including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 300 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

CHARITH MAHESH KALUTHANTHIRIGE CHARITH MAHESH KALUTHANTHIRIGE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

MIDDLETON J

DATE:

7 NOVEMBER 2007

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. This is an appeal against a judgment of a Federal Magistrate dated 26 March 2007, dismissing an application for judicial review of a decision of the second respondent (‘the Tribunal’) dated 2 June 2006.  The Tribunal had affirmed the decision of a delegate of the first respondent to refuse to grant the appellant a Student (Temporary) (Class TU) visa.

  2. The appellant is a citizen of Sri Lanka who arrived in Australia holding a temporary student visa on 25 February 2003. On 13 March 2005, the appellant applied for a further student visa and was subsequently refused by the delegate on 8 June 2005. The decision to refuse the visa was made on the grounds that the appellant had not provided satisfactory evidence that he had access to funding to support the remainder of his stay in Australia and therefore failed to satisfy cl 572.223 of Sch 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).

    THE TRIBUNAL’S DECISION

  3. In his application to the Tribunal, the appellant argued that he had access to the required funds through bank accounts in his father’s name with both the Commercial Bank and Sampath Bank of Sri Lanka.  The appellant claimed that between the available balances in these bank accounts, he satisfied the financial requirements to fund the remainder of his stay in Australia. 

  4. In assessing the appellant’s claim, the Tribunal noted that the appellant was subject to a level 3 assessment, and therefore had to satisfy the financial requirements contained at cl 5A508 under Sch 5A, Pt 5 of Div 3 of the Regulations. This required the appellant to provide certain information, as follows:

    (1) The applicant must give, in accordance with this clause:

    (a)evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 24 months:

    (i)course fees;

    (ii)living costs;

    (iii)school costs; and

    (aa)a declaration by the applicant stating that he or she has access to funds from an…

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AGLC
Kaluthanthirige v Minister for Immigration and Citizenship [2007] FCA 1783
Case
[2007] FCA 1783
Decision Date

CaseChat Overview and Summary

In Kaluthanthirige v Minister for Immigration and Citizenship, the appellant contested the Federal Magistrate’s affirmation of the Tribunal’s decision that he was unable to demonstrate sufficient financial resources to cover his course fees, living expenses, and an airfare back to Sri Lanka. The appellant argued that the Tribunal had erred in not finding that he had access to the required amount when both bank account balances were combined and that he was denied an opportunity to comment on the alleged shortfall in accessible funds. The Federal Magistrate upheld the Tribunal’s decision, noting that the appellant would have satisfied the financial criteria for his student visa for “all but the last three days of the relevant three month period.”

The appellant’s appeal raised four grounds, primarily focusing on the Tribunal's alleged failure to properly consider relevant information and the potential jurisdictional errors committed. The court had to determine whether the Tribunal adequately considered the Commercial Bank account statement, which the appellant argued was crucial to his financial assessment. The Federal Magistrate’s decision was based on the premise that any errors made by the Tribunal were validated by section 474 of the Migration Act and did not constitute jurisdictional errors warranting review.

The court found that the Tribunal’s reasons indicated they had considered more than the first page of the bank statement, as evidenced by their reference to a record of transactions and the conclusion that various amounts were less than the required amount. Consequently, the court concluded that the Tribunal likely did engage in a proper assessment of the bank statement and did not commit a jurisdictional error. The appeal was dismissed with costs, including reserved costs.

Orders

Orders of the court

1. The appeal be dismissed with costs, including reserved costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MIDDLETON J
Following an examination of account balances as listed on documents tendered by the appellant, the Tribunal was not satisfied that the appellant was able to demonstrate that he had access to $25,000, being the amount considered necessary to cover course fees, living expenses and an airfare back to Sri Lanka at the time of the Tribunal hearing.THE FEDERAL MAGISTRATE’S DECISION In an application for judicial review filed in the Federal Magistrates Court and dated 22 June 2006, the appellant asserted that the Tribunal had erred in failing to find that he had access to the required amount when both balances of the bank accounts were combined. Furthermore, the appellant claimed that he had been denied an opportunity to comment on the alleged shortfall in accessible funds, and that the stated amount of $25,000 was an excessive estimate of what funding would be required for the remainder of his stay in Australia. On 26 March 2007, the Federal Magistrate affirmed the decision of the Tribunal. In reaching this conclusion, his Honour noted that on the available evidence, including printed bank account statements, it appeared that the appellant would have satisfied the financial criteria for his student visa for “all but the last three days of the relevant three month period.” Nevertheless, the Federal Magistrate held that the Tribunal does not have a discretion as to whether or not to allow the application where a condition has not been met.GROUNDS OF APPEAL By notice of appeal filed in this Court on 16 April 2007, the appellant claimed four separate grounds of appeal:1.The Federal Magistrate erred in law in failing to find that the requirements of s 359 of the Migration Act 1958 (Cth) (‘Migration Act’) were mandatory and that any failure to comply strictly with the requirement amounts to jurisdictional error.2.The Federal Magistrate erred in law in failing to find that the Tribunal identified the wrong issue, asked the wrong question, relied on irrelevant material or ignored relevant material, and therefore acted without or in excess of jurisdiction.3.The Federal Magistrate erred in concluding that the errors of law committed by the Tribunal were errors validated by s 474 of the Migration Act and did not constitute jurisdictional errors warranting review or the grant of the prerogative writs.4. The Federal Magistrate erred in dismissing the application.CONSIDERATION In my view, this matter can be readily determined. The issue is whether the Tribunal did have regard to the Commercial Bank account statement, information which was relevant, and which I will assume needed to be considered by the Tribunal. The first respondent contends that the Tribunal did not err in failing to consider the bank account statement as it was referred to in its reasons, and the Tribunal engaged in its own assessment of it. If this is the true position, I would accept the contentions of the first respondent, and find no jurisdictional error. The appellant contends that it is apparent from the Tribunal’s reasoning that the Tribunal only considered the first page of the bank statement in reaching its decision on the matter, and in reality did not engage in any other consideration of the bank statement. If this was the true position, then the appellant, in my view, may be entitled to succeed subject to any discretionary considerations.

Ratio Decidendi

Legal Principle Established

Established by: MIDDLETON J

By notice of appeal filed in this Court on 16 April 2007, the appellant claimed four separate grounds of appeal:1.The Federal Magistrate erred in law in failing to find that the requirements of s 359 of the Migration Act 1958 (Cth) (‘Migration Act’) were mandatory and that any failure to comply strictly with the requirement amounts to jurisdictional error.2.The Federal Magistrate erred in law in failing to find that the Tribunal identified the wrong issue, asked the wrong question, relied on irrelevant material or ignored relevant material, and therefore acted without or in excess of jurisdiction.3.The Federal Magistrate erred in concluding that the errors of law committed by the Tribunal were errors validated by s 474 of the Migration Act and did not constitute jurisdictional errors warranting review or the grant of the prerogative writs.4. The Federal Magistrate erred in dismissing the application.CONSIDERATION In my view, this matter can be readily determined. The issue is whether the Tribunal did have regard to the Commercial Bank account statement, information which was relevant, and which I will assume needed to be considered by the Tribunal. The first respondent contends that the Tribunal did not err in failing to consider the bank account statement as it was referred to in its reasons, and the Tribunal engaged in its own assessment of it. If this is the true position, I would accept the contentions of the first respondent, and find no jurisdictional error. The appellant contends that it is apparent from the Tribunal’s reasoning that the Tribunal only considered the first page of the bank statement in reaching its decision on the matter, and in reality did not engage in any other consideration of the bank statement. If this was the true position, then the appellant, in my view, may be entitled to succeed subject to any discretionary considerations. When looking at the position from a practical point of view, it is clear that it is more than probable than not that the Tribunal did, in fact, consider more than the first page of the bank statement. The reasons of the Tribunal suggest the same. Paragraph 36 of the Tribunal’s reasons stated that:The tribunal has considered the documents referred to at paragraph 21 of this decision. The documents in paragraph 21 included the bank statement. Further, the Tribunal stated in paragraph 36, that:Finally a record of transactions on account number 8720004178 in the visa applicant’s father’s name indicates various amounts, all less than the required amount and given that the statement is for the period ending on 8 April 2002, well before the relevant period. The fact that the Tribunal refered to the “given” nature of the statement period does not in my mind suggest that it necessarily only looked at the first page although, obviously, the Tribunal was informed by the contents of the first page. It is also apparent from this paragraph that the Tribunal considered the various amounts included within the bank statement because not only did it refer to the period in which the statement ends, it concluded that those various amounts were all less than the required amount.