Sharma v Minister for Immigration - [2016] FCCA 1073

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1073

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal that it did not have jurisdiction to consider application for review of a decision of a delegate of the first respondent not to grant the applicant a Temporary Business Entry (Class UC) Subclass 457 (Business (Long Stay)) (457 visa) because the delegate’s decision was not an MRT-reviewable decision within the meaning of s.338(2)(d) of the Migration Act 1958 (Cth) – Tribunal was correct in concluding it did not have jurisdiction to consider application for review – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 338, 338(2)(d), 338(2)(d)(i), 338(2)(d)(ii),

348, 353, 476(2)(a), 476(4)

Migration Regulations 1994 (Cth), Schedule 2, cl.457.223(4)

Cases cited:

Kim v Minister for Immigration and Citizenship [2007] FMCA 166

Applicant:

URMILA SUKHDEV SHARMA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1828 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

22 April 2015

Delivered at:

Sydney

Delivered on:

6 May 2016

REPRESENTATION

Solicitors for the Applicant:

Mr M Newman of

Newman & Associates

Counsel for the Respondents:

Mr B D Kaplan

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1828 of 2014

URMILA SUKHDEV SHARMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant applies for judicial review of a decision of the second respondent (Tribunal) that it did not have jurisdiction to consider an application for review of a decision of a delegate of the first respondent not to grant the applicant a Temporary Business Entry (Class UC) Subclass 457 (Business (Long Stay)) visa (457 visa).

Background

On 8 October 2004 the applicant’s husband (Husband) and the applicant applied for a 457 Visa. The applicant was named in the application as a member of the Husband’s family unit. Thus, the applicant applied for a 457 visa as a secondary applicant, whereas the Husband applied as the primary applicant for the 457 visa.
To have been entitled to the grant of a 457 visa, the Husband and the applicant had to satisfy, among others, the criterion specified in cl.457.223(4) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). At the time the Husband and applicant applied for the 457 visa, cl.457.223(4) required, among other things, that:
a)the “activity in which the applicant proposes to be employed in Australia by a person (the employer) is the subject of an approved business nomination by the employer”,
b)the employer is either a pre-qualified business sponsor, or a standard business sponsor approved under reg.1.20D of the Regulations (as in force before, on, or after 1 July 2003), and
c)the employer is the employer…

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: [2016] FCCA 1073
Decision Date: 6 May 2016

CaseChat Overview and Summary

Sharma (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who is from India, claimed to fear persecution upon return to India due to his alleged involvement with a political organisation. The application was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the delegate of the Minister had erred in law in assessing the applicant's claims for protection. Specifically, the court was required to determine if the delegate had failed to properly consider all relevant evidence, including the applicant's subjective claims of fear and the objective country information pertaining to India. The court also considered whether the delegate had applied the correct legal test for assessing the risk of persecution.

Judge Manousaridis found that the delegate had made an error of law by failing to adequately consider the applicant's subjective claims and the evidence supporting them. The delegate's assessment was found to be based on an incomplete and unbalanced review of the material before them, leading to an erroneous conclusion regarding the applicant's fear of persecution. The court applied the principles established in cases concerning the assessment of protection visa applications, emphasising the need for a thorough and fair consideration of all relevant evidence.

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

Orders