Sharma v Minister for Immigration

[2018] FCCA 382

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 382

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – success of application dependent on proceedings SYG 2504 of 2016 – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 476

Migration Regulations 1994 (Cth), sch.2, cl.186.223

Cases cited:

Shri Shiva Mandir Ltd v Minister for Immigration & Anor [2018] FCCA 383

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

First Applicant: CHETANKUMAR MORARILAL SHARMA

Second Applicant: SHITALBEN DULKUBHAI SHARMA

Third Applicant: DIPIXABEN NIMESHBHAI MAHETA

Fourth Applicant: PRAPTI SHARMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3201 of 2016

Judgment of: Judge Nicholls

Hearing date: 26 June 2017

Date of Last Submission: 26 June 2017

Delivered at: Sydney

Delivered on: 26 February 2018

REPRESENTATION

Counsel for the Applicants: Ms U Okereke-Fisher

Solicitors for the Respondents: Mr J Pinder of Minter Ellison Lawyers

ORDERS

1. The application made on 17 November 2016 is dismissed.

2. The first and second applicants pay the first respondent’s costs set in the amount of $1,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3201 of 2016

CHETANKUMAR MORAILAL SHARMA

First Applicant

SHITALBEN DULKUBHAI SHARMA

Second Applicant

DIPIXABEN NIMESHBHAI MAHETA

Third Applicant

PRAPTI SHARMA

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 24 October 2016, which affirmed the decision of the delegate of the Minister to refuse the applicants’ Employer Nomination (Permanent) (Class EN) visas.

2. The evidence before the Court is as follows:

   a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).

3. This matter was heard at the same time as proceedings SYG 2504 of 2016 (see Shri Shiva Mandir Ltd v Minister for Immigration & Anor [2018] FCCA 383 (“Shri Shiva Mandir”) at [1] – [6]). The first applicant (Mr Sharma) was to be the subject of the nomination for which the applicant in Shri Shiva Mandir sought approval. This judgment needs to be read with that judgment.

Background

1. On 14 October 2014, Mr Sharma applied for an Employer Nomination (Permanent) (Class EN) visa via the Direct Entry stream to work in the position of a Minister of Religion. The second, third and fourth applicants applied as members of Mr Sharma’s family unit (CB 1 to CB 16). The applicants were invited to comment on “adverse information” regarding their visa applications by letter dated 6 May 2015, and sent by email to their representative authorised to receive correspondence on their behalf. The letter stated (at CB 121.6):

   “The nomination submitted to the department by SHRI SHIVA MANDIR LTD listing you as their Nominee has been refused. Unfortunately this means that your visa application cannot be approved…”

2. No response was received by the Minister’s department. The delegate refused the grant of the visas on 15 June 2015, and the applicants were notified by letter of the same date and sent to their representative authorised to receive correspondence on their behalf by email (CB 124 to CB 136). Mr Sharma was found not to satisfy the requirements of cl.186.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) as “the appointment to which the visa application by Mr Sharma relates to ha[d] not been approved” (CB 135.9). Consequently, the second, third and fourth applicants could not satisfy the requisite criteria.

3. The applicants applied for review to the Tribunal on 26 May 2015 (received by the Tribunal on 29 June 2015) (CB 137 to CB 147). The applicants were invited to “comment on or respond to information” by letter dated 16 August 2016 and sent by email to their representative authorised to receive correspondence on their behalf on the same date. The relevant information was that Mr Sharma’s employer’s (Shri Shiva Mandir Ltd’s) nomination for the position for which Mr Sharma’s application related, was refused on 15 August 2016 (CB 161 to CB 163). The applicants’ authorised representative responded via email on 29 August 2016 which attached various documents (CB 165 to CB 273).

4. The applicants were invited to, and attended, a hearing before the Tribunal on 19 September 2016 (CB 274 to CB 288). An officer of the applicants’ purported sponsor also attended (CB 286). The Tribunal affirmed the decision of the delegate on 24 October 2016 on the basis that Mr Sharma did not meet cl.186.233 of Schedule 2 to the Regulations (CB 295 to CB 298).

5. The Tribunal’s decision record notes that a “request” was made to the Tribunal that it “postpone” making its decision until the Minister’s department had responded to the first applicant’s employer’s request in relation to the nomination. In the circumstances, this appears to relate to the request to “vacate” the decision to refuse the nomination of the employer, which was sent to the Minister’s department on 29 August 2016 (see Shri Shiva Mandir at [18]). It was also submitted that a judicial review application relating to the relevant nomination had been filed and a request was made that the Tribunal “delay” making its decision until that matter “had been finally determined” ([15] at CB 297).

6. The Tribunal explained to the applicants that the matter relating to the nomination had been “finally determined” within the meaning of s.5 of the Act. Further, that any judicial review proceedings could take a considerable period of time to resolve and it was not appropriate for the Tribunal to delay making its decision on the review ([17] at CB 297 to CB 298). However, while the Tribunal was not willing to wait “indefinitely” it did agree to give the applicants a “period of one month, until 19 October 2016” for the nominator to communicate with the Minister’s department regarding the request to “vacate” the decision ([18] at CB 298).

7. The Tribunal did not hear from the applicants within the required period and consequently affirmed the decision of the delegate on the basis that the first applicant did not meet cl.186.233 of Schedule 2 to the Regulations ([19] - [21] at CB 298).

The Application to the Court

1. The grounds of the application to the Court are in the following terms:

   “1. The Tribunal committed jurisdictional error by failing to taking into account relevant considerations. In particular, the Tribunal being aware that the nominator had appealed to the Federal Court in respect of the associated nomination application, proceeded to make a determination based upon a matter that is not considered a finally determined matter as defined by s5 of the Migration Act 1958 (Cth). Whether or not there is an approved nomination is still being considered by the Federal Circuit Court and to make a decision based upon this was unreasonable. Given this, the Tribunal erred in concluding that the Plaintiffs did not meet the relevant criteria in respect of having an approved nomination.

   2. The Tribunal committed jurisdictional error by failing to take into account relevant considerations in respect of the Plaintiffs application for a subclass 186 visa. In particular, the Tribunal failed to consider that the applicant’s nominator had made other applications to the Department for approval of other visas and which had been approved upon the basis that the nominator is actively and lawfully operating a business in Australia. The Tribunal thus committed jurisdictional error by not taking into account relevant information.

   3. The Tribunal committed jurisdictional error by failing to independently assess the question of whether the plaintiff’s nominator is actively and lawfully operating a business in Australia and based it’s decision purely on the ground that the applicant failed to provide additional information that was requested.

   4. The Tribunal failed to provide a further opportunity for the nominator to provide the requested documents.

   5. The Tribunal failed to exercise jurisdiction.”

2. Although not raised by the grounds of the application, I note that no legal error arises from the Tribunal’s decision to proceed to a final determination of the Sharma family visa applications. The Tribunal’s action was reasonable and it found an intelligible justification for proceeding (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332). That is, the basis for the request to defer the decision had been finally determined within the meaning of the Act. In any event the Tribunal did give the Sharma family a month to “communicate” with the Minister’s department (see [9] above).

3. Before the Court, Mr Sharma’s counsel submitted that Mr Sharma’s application, and that of his family, “lives and or dies by the first one” [that is, in context, the application the subject of proceedings SYG 2504 of 2016]. The Minister agreed that in effect, unless some legal error was found in the Tribunal decision involving Shri Shiva Mandir Ltd (the nominator), Mr Sharma’s (and his family’s) application to the Court could not succeed, given its dependence on that outcome.

4. In the decision of 24 October 2016 (in relation to Mr Sharma and his family), the Tribunal found that Mr Sharma did not satisfy the requirements for the grant of the visa for which he (and his family) had applied because he was not the subject of a nomination for employment in a position which had been approved.

5. Given that Mr Sharma’s grounds of his application to the Court, in essence assert error on the part of the Tribunal in relation to the nomination application made by Shri Shiva Mandir Ltd, I agree with the parties that the outcome of Mr Sharma’s application (and that of his family), depends on the application by Shri Shiva Mandir Ltd.

Conclusion

1. For the reasons given in Shri Shiva Mandir Ltd v Minister for Immigration & Anor [2018] FCCA 383 that application is to be dismissed. Mr Sharma’s application, and therefore that of his family, should also be dismissed. I will make that order.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  26 February 2018