Kiloul v Minister for Immigration and Multicultural Affairs

[2006] FCA 1055

FEDERAL COURT OF AUSTRALIA

Kiloul v Minister for Immigration & Multicultural Affairs [2006] FCA 1055

MOHAMED KILOUL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND MIGRATION REVIEW TRIBUNAL
NSD 864 OF 2006

TRACEY J
7 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 864 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MOHAMED KILOUL
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	7 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs, fixed in the sum of $3,500.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 864 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MOHAMED KILOUL
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	7 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate of 24 April 2006 dismissing an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) of 30 January 2004:  see Kiloul v Minister for Immigration and Multicultural Affairs [2006] FMCA 650. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse grant of a Student (Temporary) (Class TU) visa to the appellant. The appellant sought a subclass 572 visa.

2. The appellant is a citizen of Morocco.  In order to satisfy the criteria for grant of a Student (temporary) visa, the applicant had to satisfy, inter alia, reg 572.223 of the Migration Regulations 1994 (Cth) (‘the Regulations’) and consequently the requirements in Sch 5A for subclass 572. The applicant (or another prescribed person) was required, by cl 5A 408 of Sch 5A of the Regulations to have held funds sufficient to meet certain prescribed costs for three months prior to the date of application for a visa. The delegate refused grant of the visa as the appellant did not establish that he had held the necessary funds for at least three months prior to lodging the application for the visa.

3. On 11 October 2002 the appellant applied to the Tribunal for review of the delegate’s decision. The Tribunal found that the appellant did not have sufficient funds from an acceptable source and did not indicate the source of funds to which he claimed to have access in Australia. The Tribunal was not satisfied that the appellant had regular income from an acceptable source sufficient to accumulate the level of funding required. It went on to find that the appellant’s evidence of financial capacity at the date of his application did not meet the three months requirements. It held that the appellant did not satisfy cl 572.223 of Sch 2 of the Regulations.

4. On 17 February 2004 the appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court of Australia. Before the Federal Magistrate, the appellant advanced the following grounds of review: that the Tribunal exceeded its jurisdiction; that the Tribunal failed to accord procedural fairness as required under s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’); that the Tribunal did not follow the proper procedures required by the Act; that the Tribunal failed to exercise its discretion in considering the appellant’s financial ability to continue studying in Australia; that the Tribunal failed to consider the appellant for a subclass 572 visa; that there was a constructive failure to exercise discretion and an error of law made by the Tribunal; that the Tribunal erred in not finding that the delegate had not dealt with the application in a substantive way; that the appellant’s non-compliance was not deliberate but due to circumstances beyond the appellant’s control; and that the Tribunal did not consider the consequences to the appellant.

5. The Federal Magistrate considered the Tribunal’s decision and found that the Tribunal had erred by assessing the appellant’s entitlements by reference to a shorter course of study than that upon which the original visa application and the delegate’s decision had been based. 

6. Notwithstanding this finding, his Honour did not grant the relief sought because the appellant still did not satisfy the requirements of Sch 5A of the Regulations. The appellant did not (despite being expressly invited to do so) provide the Tribunal with evidence that he or another “acceptable individual” had held the necessary level of funds for at least three months immediately before the date of his application. There was no provision for the exercise of discretion in this regard. The appellant had simply failed to meet one of the requirements for the grant of the visa. The appellant could, so the Federal Magistrate held, have done something ex post facto, such as indicating that he was relying on outside funds being held or deposited evidenced by producing bank statements from an acceptable person holding sufficient funds for three months – but the appellant had not done that.  Indeed he advised the Tribunal in writing that “neither my parents or myself are able to provide the evidence requested by you.”

7. Furthermore, there was no breach of s 424A(1) of the Act as the Tribunal sent the appellant a letter under s 359C of the Act (the relevant section) setting out the requirements of cl 5A 408 of Sch 5A in the Regulations. There was no discretion in relation to the matter and the Federal Magistrate dismissed the application.

8. On 5 May 2006 the appellant filed a notice of appeal in this Court. The notice of appeal raised the following grounds: that the Tribunal did not properly understand and carry out its function under s 348 of the Act; that the Tribunal failed to take into account a relevant consideration; that there was denial of natural justice; and that the Tribunal made a jurisdictional error. These grounds were not particularised in any detail.

9. The appellant appeared in person at the hearing of the appeal and was assisted by an interpreter. The appellant submitted that the Tribunal had failed to have regard to the fact that no one had told him of the three month requirement before he lodged his application on 30 August 2002 and that shortly thereafter the Regulations had been changed so as to bring his brothers within the definition of “acceptable individual” and therefore rendered them acceptable sources of the necessary funds. As I sought to explain to the appellant during argument, neither his lack of knowledge of the three month requirement nor the legislative change following the date of his application could render errant the decisions of the delegates or the Tribunal.

10. The appellant, despite being invited to do so, had failed to provide the evidence required by cl 5A 408 (1) of Sch 5A of the Regulations. In the absence of such evidence, an essential criterion for the grant of a visa had not been met and the application had to be refused. The decision of the Federal Magistrate was plainly correct for the reasons which he gave. No error is shown. The appeal will be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey .

Associate:

Dated:       14 August 2006

Appellant:	Appellant appeared in person
Counsel for the Respondent:	Christos Mantziaris
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	7 August 2006
Date of Judgment:	7 August 2006