Alkhousi v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 373 (22 November 2002)

Last Updated: 28 November 2002

FEDERAL COURT OF AUSTRALIA

Alkhousi v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCAFC 373

MOHANAD ALKHOUSI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Q 76 OF 2002

DRUMMOND, MARSHALL AND DOWSETT JJ

22 NOVEMBER 2002

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 76 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MOHANAD ALKHOUSI APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	DRUMMOND, MARSHALL AND DOWSETT JJ
DATE OF ORDER:	22 NOVEMBER 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of and incidental to the appeal to be taxed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 76 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MOHANAD ALKHOUSI APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	DRUMMOND, MARSHALL AND DOWSETT JJ
DATE:	22 NOVEMBER 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

DRUMMOND J:

1 I will ask Marshall J to deliver the judgment of the Court.

MARSHALL J:

2 This is an appeal from a judgment of Cooper J in which his Honour dismissed the appellant's application to review a decision of the Migration Review Tribunal ("the MRT"). The MRT decided that the appellant was not entitled to a Partner (Migrant) (Class BC) visa ("the visa"). The application before his Honour was filed on 14 January 2002. It was dealt with in accordance with the provisions of the Migration Act 1958 (Cth) ("the Act"), which included the amendments effected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), which took effect on 2 October 2001.

Factual background

3 The appellant is a citizen of Syria. He married an Australian citizen in Damascus on 29 June 1996. On 10 December 1996 he applied for the visa and also for a Partner (Provisional) (Class UF) visa to allow him to enter Australia and remain, pending the determination of his application for the visa. The provisional visa was granted on 7 June 1997. The appellant first entered Australia on 6 August 1997 but did not take up permanent residence until July 1998.

4 On 22 June 2000 a delegate of the respondent refused to grant the visa to the appellant. The visa was refused essentially because:

* the appellant's wife had withdrawn her support for the appellant's application as his sponsoring spouse;

* at the time of the delegate's decision the appellant was no longer a "spouse" of a sponsoring spouse, in accordance with the definition of "spouse" in reg 1.15A of the Migration Regulations 1994 ("the Regulations"). That definition was not met because the appellant and his wife had separated.

5 On 3 July 2000 the appellant applied to the MRT to review the delegate's decision. On 27 December 2001, the MRT affirmed the decision of the delegate. In its reasons for decision the MRT referred to:

* the fact of the separation of the appellant and his wife;

* the withdrawal of the sponsorship for the appellant by his wife.

The reasoning of the primary judge, in summary

6 The prescribed criteria which must be satisfied for the grant of the visa are set out in subclass 100 of Sch 2 to the Regulations. The criteria to be satisfied at the time of the decision are set out at cl 100.22. That provision was reproduced by the primary judge at [3] of his reasons.

7 At [13] his Honour observed that, "The requirements of sub-cl 100.221(2)(b) and (c) are cumulative and not alternative". His Honour held that not all of the cumulative criteria were satisfied by the appellant. As it was not in dispute that the appellant and his wife had ended their relationship on 15 August 1999, not all the criteria were capable of being satisfied. That included the criterion that as at 22 June 2000 the appellant was the "spouse" of a "sponsoring spouse" as defined by the Regulations.

8 His Honour held that neither the delegate nor the MRT erred in the proper construction or operation of cl 100.221 or of the definition of "spouse" in reg 1.15A(1) and (1A). Having formed the view that the appellant had disclosed no legal error in the reasoning of the MRT, it was not necessary for the primary judge to consider the effect of s 474 of the Act in the circumstances. In any event, having regard to the facts of this case, I can see no basis for the view that an error not protected by s 474 was made by the MRT.

Conclusion

9 I am unable to discern any error in the reasoning of the primary judge. Nothing has been advanced orally on the appeal which shows that his Honour erred in any way. The appellant challenged the costs order made against him by the primary judge. In so doing, the appellant referred to certain documents which he received from the respondent's department after he had commenced his application to the Court.

10 The late receipt of the documents from the respondent's department to which the appellant referred did not, despite what the appellant said about changing his application if he had earlier known of the documents, stop him from proceeding with the application before the primary judge. His Honour was entitled to make the usual order as to costs, there being no exceptional or unusual considerations which would have led to him to do otherwise. The late receipt of the documents provides no grounds for any reconsideration of his Honour's order as to costs.

11 Additionally, there is no reason why the Court should not make the usual order as to costs of the appeal. The appeal should therefore be dismissed with costs.

DRUMMOND J:

12 I agree with the reasons given by Marshall J and with the orders he proposes.

DOWSETT J:

13 I also agree.

DRUMMOND J:

14 The orders of the Court will therefore be that the appeal is dismissed and that the appellant pay the respondent's costs of and incidental to the appeal to be taxed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond, the Honourable Justice Marshall and the Honourable Justice Dowsett.

Associate:

Dated: 27 November 2002

Counsel for the Appellant:	The appellant appeared in person.
Counsel for the Respondent:	Mr P G Bickford
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	22 November 2002
Date of Judgment:	22 November 2002