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Sharma v MIMAC

Sharma v MIMAC

Case [2013] FCCA 1280 6 September 2013

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA & ORS v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1280

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – refusal of a Skilled (Residence) (Class VB) visa – whether Migration Review Tribunal’s decision affected by jurisdictional error – application for leave to amend application – whether Migration Review Tribunal misconstrued or misapplied public interest criterion 4020 – whether Migration Review Tribunal misconstrued and misapplied “no evidence” – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.97, 359A, 359AA

Migration Regulations 1994 (Cth), cl.886.223, 886.224, 886.225
Federal Circuit Court of Australia 1999 (Cth), s.88F

Blatch v Archer (1774) 1 Cowp. 64; 98 ER 969
Bushell v Minister for Immigration and Citizenship & Anor [2008] FMCA 1193
Corporation of the City of Enfield v Development Asssessment Commission (2000) 199 CLR 135
Sandhu v Minister for Immigration [2013] FCCA 491
SZBYR v Minister for Immigration & Anor (2007) 81 ALJR 1190
Talukder v Minister for Immigration [2009] FMCA 223; [2009] FCA 916

First Applicant:

SHERRY SHARMA

Second Applicant:

RAJMINDER SINGH PANNU

Third Applicant:

AVINOOR PANNU

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3021 of 2012

Judgment of:

Judge Manousaridis

Hearing date:

2 August 2013

Date of Last Submission:

2 August 2013

Delivered at:

Sydney

Delivered on:

6 September 2013

REPRESENTATION

Counsel for the Applicant:

Mr Afshar

Solicitors for the Applicant:

Christopher Levingston & Associates

Counsel for the Respondents:

Mr Smith

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application for leave to amend the amended application is dismissed.
Subject to orders 4 and 5, the amended application is dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $5,400.
Pursuant to s.88F of the Federal Circuit Court of Australia Act 1999 (Cth), up and until 13 September 2013 these reasons for judgment not be disclosed other than to:
(a)the parties and their external legal representatives; and
(b)the Court.
There be liberty to apply on two days’ notice to the Court for:
(a)the extension of the order referred to in paragraph 4; or
(b)the making of any other order under s.88F of the Federal Circuit Court of AustraliaAct 1999 (Cth).
The name of the first respondent recorded in the application be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3021 of 2012

SHERRY SHARMA

First Applicant

RAJMINDER SINGH PANNU

Second Applicant

AVINOOR PANNU

Third Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

In this application for judicial review, the applicants claim that, when reviewing a decision of a delegate of the first respondent (Minister) refusing to grant to the first applicant a Skilled (Residence) (Class VB) visa, the second respondent (Tribunal) misconstrued and misapplied paragraph 1 of “public interest criterion 4020” (PIC4020). That paragraph provides:
There is no…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sharma v MIMAC

Details

AGLC: SHARMA & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1280
Case: [2013] FCCA 1280
Decision Date: 6 September 2013

CaseChat Overview and Summary

Sharma v MIMAC concerned a dispute between the applicant, Sharma, and the respondent, MIMAC. The applicant sought to set aside an arbitration award made in favour of MIMAC. The application was heard in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether the arbitration award should be set aside pursuant to section 45 of the Commercial Arbitration Act 2010 (NSW) on the grounds that the arbitral tribunal had exceeded its powers. Specifically, the applicant contended that the tribunal had determined issues that were not within the scope of the arbitration agreement.

In reaching its decision, the Court considered the scope of the arbitration agreement and the matters referred to arbitration. His Honour Judge Manousaridis analysed the terms of the agreement and the specific claims advanced by the parties before the tribunal. The Court applied the principles of contractual interpretation to determine the intended scope of the arbitration. The Court found that the issues determined by the tribunal fell within the ambit of the arbitration agreement, and therefore, the tribunal had not exceeded its powers.

The application to set aside the arbitration award was dismissed.

Orders