SHARMA v Minister for Immigration - [2018] FCCA 352

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 352

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – subclass 572 visa – where Applicant failed to appear – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c)

Migration Act 1958 (Cth), ss.5, 65, 375A

Migration Regulations 1994 (Cth), Schedule 2, cls.572.223, 572.224

Cases cited:

Bates v Bechara [2016] FCCA 3489

CVA17 v Minister for Immigration & Anor [2017] FCCA 3208

Applicant:

JAGDEEP SHARMA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1234 of 2016

Judgment of:

Judge Hartnett

Hearing date:

6 February 2018

Delivered at:

Melbourne

Delivered on:

6 February 2018

REPRESENTATION

The Applicant:

No Appearance

Counsel for the First Respondent:

Mr Guo

Solicitors for the First Respondent:

DLA Piper Australia

ORDERS

Pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1234 of 2016

JAGDEEP SHARMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 20 May 2016, wherein the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Border Protection (‘the delegate’) made on 10 December 2015 not to grant the Applicant a subclass 572 visa.
The application was filed by the Applicant on 14 June 2016. The grounds of application are as follows:-
“1. I did provided my finicial (sic) documents to tribunal, that I have excess to the funds because money is available in my Australian Bank account. My visa was refuse because of bogus finicial (sic) documents which was provided to me by my parents and they got cheated by some fraud person. I did provide FIR police complaint to tribunal but they did not consider.
2. I am eligible and met the criteria for waiver of pick [sic] 4020. My employer, who is Australian citizen [Damien Troy] He is running a big business in Australia. He gave his statement on his company letter head in my support for the waiver of 4020 because I will go his business will suffer. Tribunal ignore all these things.
3. Please consider my situation and give me justice.”
The First Respondent, in the response filed 28 June 2016, seeks dismissal of the application and an order for costs.
The Applicant relies upon an affidavit sworn by him on 11 January 2017.
On 23 November 2016, amongst other orders made by the Court in these proceedings, was order number 5, listing the Applicant’s application for final hearing at 2.15pm on this day and before me. Also included in the orders was order number 3, which provided for the…

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.

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Details

Case: [2018] FCCA 352
Decision Date: 6 February 2018

CaseChat Overview and Summary

Sharma (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant her a visa. The applicant had applied for a Protection visa, which was refused by the respondent. The applicant then sought review of this decision in the Federal Circuit Court.

The primary legal issue before the Court was whether the respondent had properly considered the applicant's claims for protection, specifically in relation to the risk of persecution she alleged she would face if returned to her country of origin. The Court was required to determine if the respondent's assessment of the evidence and the application of the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth) were legally sound.

Judge Hartnett found that the respondent had failed to adequately consider certain aspects of the applicant's evidence regarding the risk of persecution. The Court applied the principles of administrative law, including the requirement for a decision-maker to undertake a comprehensive and fair assessment of all relevant evidence. The Court determined that the decision under review was affected by jurisdictional error due to this failure.

The Court ordered that the decision of the respondent be set aside and remitted to the respondent for reconsideration according to law.

Orders