KILOUL v Minister for Immigration
[2006] FMCA 650
•24 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KILOUL v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 650 |
| MIGRATION − Review of MRT decision − where applicant refused grant of student visa − whether applicant met evidentiary requirements of Schedule 5A of the Migration Regulations1994 − whether applicant satisfied requirement of having sufficient financial ability to fund course three months before date of application, as required by Schedule 5A 408(2). |
| Migration Act 1958, ss.424A(1), 359C Federal Magistrates Court Rules 2001 |
| Applicant: | MOHAMED KILOUL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG410 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 24 April 2006 |
| Date of last submission: | 24 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2006 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $3,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG410 of 2004
| MOHAMED KILOUL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application seeking review of a decision of the Migration Review Tribunal made on 30 January 2004 in regard to a decision by a delegate on a Student (Temporary) (Class TU) Visa.
The applicant is a citizen of Morocco. He came to Australia to study and obtained a student visa. He undertook at course for the Diploma of Information Technology and completed that successfully. Upon receiving the results of that diploma, he applied to undertake a further course of study. His application for a visa in order to undertake this course was made to the Department, who assessed the application in accordance with regulation 572.223 of the Migration Regulations1994 (the “Regulations”). That regulation relevantly says:
“(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) for an applicant who is not a person designated under regulation 2.07AO.
(i) the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for subclause 572 and the assessment level to which the applicant is subject, in relation to:
…
(B)the financial capacity of the applicant to undertake each of those courses of study without contravening any condition of the visa relating to work…”
The relevant provisions of Schedule 5A are in the following form:
“5A 408
(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) school 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 an acceptable individual has held for at least the three months immediately before the date of the application;...”
When the application was considered by the delegate, the applicant provided a bank statement in his own name from the Commonwealth Bank of Australia. It showed an opening balance of $5,541.64 as at 31 August 2002 and a closing balance of $17,780.49 as at 18 September 2002.
The delegate was unable to be satisfied that the applicant had a sufficient level of funds for three months prior to lodging the application as he was required to do. The delegate had calculated the amount required under Schedule 5A in accordance with the course fees and other criteria as set out in the Regulations. Before the delegate made his decision, the applicant had changed the course he proposed to undertake from a two-year course to a one-year course that only required $16,000 of available funds to meet the criteria.
The applicant sought review of the decision of the delegate from the Migration Review Tribunal. On 19 September 2003, the Tribunal wrote to the applicant, setting out in detail the financial requirements and asking for his comments upon the fact that it did not appear that he had met these. The applicant then accepted an invitation to appear before the Tribunal and provided the Tribunal with an academic transcript made up to 4 November 2003 indicating that he had almost completed the course in respect of which he appeared to have between a credit and a distinction average. He later, before decision, submitted notification of having passed the course.
But the applicant was not able to improve upon the situation which had pertained at the time of the delegate's decision that although at the commencement of the course he had some $17,000 in the bank, he had not had that amount of money in the bank for three months, and thus had not complied strictly with the provisions of Schedule 5A.
The Tribunal's decision, which is found at [CB 95] is as follows:
“At the hearing, the visa applicant confirmed details of his migration and academic history as set out in the Department and Tribunal files. The visa applicant provided the Tribunal with additional documentary evidence which included a photocopy of a statement from the Sydney International College of Business dated 4 November 2003 stating that he had fulfilled the requirements for a Diploma of E.Business, a letter dated 12 November 2003 from the same college stating that he had been provisionally accepted into the Diploma of Information Technology course as well as an account from the College. Questioned about his financial capacity the visa applicant proffered two documents to show that at one stage he had a credit balance of over $20,000 in an account of the Commonwealth Bank, North Sydney branch. Transactions listed on the statement end on 19 September 2002. Asked about his current financial status, the visa applicant stated to the effect that it is not possible to take money out of Morocco and that in order to acquire the necessary funds he has to receive them through relatives in Europe. He requested that the Tribunal allow him to continue with his studies until he can arrange for the transfer of funds from overseas relatives.
Based on the above oral and documentary evidence, the Tribunal finds that the visa applicant does not have evidence that he presently has funds in Australia. In addition the visa applicant has provided no documentary evidence to indicate the source of funds which he has accessed in Australia.
The visa applicant's evidence of financial capacity at the date of the application and at the date of decision indicate that he does not have sufficient funds from an acceptable source to meet specified expenses for the full period of his stay in Australia.
The Tribunal is not satisfied that the visa applicant has regular income from an acceptable source sufficient to accumulate the level of funding to be provided.”
To my mind, the decision of the Tribunal, and in particular the last part thereof, is somewhat confusing. It sounds as if the Tribunal is considering not the decision which the delegate made but some new decision in relation to the new course that the applicant indicated to the Tribunal he wished to undertake. That was not the remit of the Tribunal. To the extent that the Tribunal made any decision about the course the applicant intended to undertake, it seems to me that it fell into jurisdictional error.
The problem that I do have, so far as the applicant is concerned, is finding any jurisdictional error in relation to a decision that the applicant did not, as at the date of the application and as at the date of the decision, meet the requirements of Schedule 5A. At the time of the application, the applicant had not given evidence that he had had the sum of $16,908 (the required sum) in an account or otherwise available in accordance with the regulations for a period of three months.
He might have been able to do this as at the time of the decision by producing bank statements from the time that he had approximately $20,000 in the bank for a period of three months, but that would not have assisted him because of the provisions of Schedule 5A 408(2), which defines funds from an acceptable source being:
“...a money deposit that an acceptable individual has held for at least the three months immediately before the date of the application.” (emphasis added)
In those circumstances, there was nothing the Tribunal could do to assist the applicant. There was no provision for some exercise of discretion in this regard. The applicant had simply failed to meet the requirements for the visa; and, having failed to meet the requirements for the visa, the delegate was obliged not to grant the visa.
There was something that the applicant could have done ex post facto his application to assist himself to meet the requirements to the extent that he relied upon outside funds being held or deposited. If he had produced bank statements from Morocco showing that an acceptable person had held sufficient funds for a period of three months, the Tribunal could have granted him the visa. He had had some time to do that, but either through misunderstanding or the inability of the Moroccan authorities, that evidence was not produced.
The application alleges that the Tribunal did not provide the applicant with procedural fairness under s.424A(1) of the Migration Act 1958. That is unsustainable as the Tribunal sent the applicant a letter under s.359C (the relevant section) dated 19 September 2003 [CB 62] setting out in detail the requirements of Clause 5A 408. The application goes on to argue that the Tribunal failed to exercise its discretion. That is also unsustainable as the Tribunal has no discretion in relation to these matters.
In all the circumstances, there is no course open to me other than to dismiss the application, which I do. I order that the applicant pay the respondent's costs which I assess in the sum of $3,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM.
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