SHARMA v Minister for Immigration - [2017] FCCA 431

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 431

Catchwords:
MIGRATION – Application for judicial review – apprehended bias – not matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.46a, 65, 116, 195A, 360, 366C, 499

Migration Regulations 1994, sch.2

Cases cited:

MZZLO v Minister for Immigration and Border Protection (No.2) [2016] FCA 356

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v Anochie [2012] 209 FCR 497
Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] 253 CLR 219
R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529
Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145

Applicant:

ABHISHEK SHARMA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 325 of 2015

Judgment of:

Judge Riethmuller

Hearing date:

14 December 2016

Date of Last Submission:

14 December 2016

Delivered at:

Melbourne

Delivered on:

10 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr Aleksov

Solicitors for the Applicant:

Carina Ford Immigration Lawyers

Counsel for the Respondents:

Mr Tran

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.
The Second Respondent’s name be amended to the Administrative Appeals Tribunal.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 325 of 2015

ABHISHEK SHARMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This applicant was granted a student visa on 23 December 2013, on the basis that he was enrolled in a Masters of Commerce (Professional Accounting) degree at Federation University.
The applicant commenced his studies in early 2014, but ceased studying by July resulting in his enrolment being cancelled on

29 July 2014. The applicant failed all of the subjects in which he was enrolled in the first semester. He did not attend all of his classes (having attendance rates of around two-thirds or lower, in some classes, but acceptable attendance in others).
The applicant then chose to enrol in a Certificate III course in commercial cookery. It appears that he entered into this enrolment, at least in part, on the advice of a migration agent. The Department then issued a Notice of intention to consider cancelling the visa (NOICC), as the applicant had arrived in Australia through a fast track assessment process for higher education students, but had changed to a Certificate III course. Following receipt of this notice, the applicant enrolled in a Bachelors course at a private institute in Melbourne in order to undertake a Bachelor of Business.
The applicant’s visa was cancelled and he then sought review by the Migration Review Tribunal (as it was then called), but his review application was dismissed by the Tribunal on 29 January 2015. The applicant now seeks judicial review of the decision…

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: [2017] FCCA 431
Decision Date: 10 March 2017

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 delegate of the Minister. The Administrative Appeals Tribunal affirmed the delegate's decision. The applicant then sought review of the Tribunal's decision in the Federal Circuit Court.

The primary legal issue before the Court was whether the Tribunal had erred in law by failing to adequately consider the applicant's claims of past persecution and her fear of future persecution in her country of origin. Specifically, the Court had to determine if the Tribunal had properly applied the principles of assessing credibility and the evidentiary burden in relation to protection claims.

The Court found that the Tribunal had failed to provide adequate reasons for its findings regarding the applicant's credibility and the assessment of her fear of persecution. It was held that the Tribunal's decision did not sufficiently engage with the evidence presented by the applicant, nor did it adequately explain why certain aspects of her evidence were not accepted. The Court reiterated the principle that a decision-maker must provide reasons that are sufficient to enable a party to understand the basis of the decision and to identify any grounds for appeal.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.

Orders