Sharma v Minister for Immigration - [2016] FCCA 961

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 961

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the requirements for a waiver of Public Interest Criterion 4020 are satisfied – whether the circumstances identified by the applicant constitute compelling or compassionate circumstances for the purposes of Public Interest Criterion 4020(4)(b) – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.31, 65, 97, 338, 357A, 359A, 359AA, 360, 474
Migration Regulations 1994 (Cth), reg.2.01, Schedule 2 – cl.572.224, Schedule 4 – Public Interest Criterion 4020

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Vyas & Anor v Minister for Immigration & Anor [2013] FCCA 1226
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044

Applicant:

RAVI KANT SHARMA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2593 of 2014

Judgment of:

Judge Emmett

Hearing date:

7 April 2016

Date of Last Submission:

7 April 2016

Delivered at:

Sydney

Delivered on:

4 May 2016

REPRESENTATION

Solicitor for the Applicant:

Mr Nigel Dobbie
(Dobbie and Devine Immigration Lawyers Pty Ltd)

Solicitor for the Respondents:

Ms Katherine Hooper
(DLA Piper Australia)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2593 of 2014

RAVI KANT SHARMA

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 25 August 2014 and handed down on 26 August 2014 (“the Tribunal”).
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

On 4 April 2013, the applicant lodged an application for a Student (Temporary) (Class TU) visa with the Department of Immigration and Citizenship (“the Department”).
On 11 September 2013, the Delegate refused the applicant’s application for a student visa.
On 25 September 2013, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 26 August 2014, the Tribunal affirmed the decision of the Delegate not to grant a student visa.
On 18 September 2014, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of…

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 961
Decision Date: 4 May 2016

CaseChat Overview and Summary

The applicant, Mr Sharma, sought judicial review of a decision by the Migration Review Tribunal. The dispute concerned the Tribunal's refusal to grant a waiver under subclause 4020(4) of the *Migration Regulations 1994* (Cth) in relation to Mr Sharma's application for a student visa. Mr Sharma had admitted to providing a bogus document in support of his visa application, which meant he could only satisfy Public Interest Criterion 4020 if the waiver was granted. The matter came before Emmett J of the Federal Court of Australia.

The primary legal issue before the Court was whether the Tribunal had misinterpreted or misapplied the law in assessing Mr Sharma's claim that his support for an elderly Australian citizen couple constituted either compelling or compassionate circumstances affecting the interests of an Australian citizen, as required by subclause 4020(4)(b). Specifically, the Court had to determine if the Tribunal had imposed a higher threshold than that stipulated by the regulation by requiring proof of a significant impact on the health and well-being of the couple if Mr Sharma's support ceased.

Emmett J reasoned that subclause 4020(4)(b) did not require the applicant to demonstrate a significant impact on the health and well-being of the Australian citizens. The Tribunal had erred by applying this elevated test to both the "compelling" and "compassionate" elements of the subclause. Furthermore, the Court found that the Tribunal had failed to adequately address the "compassionate" aspect of the circumstances, focusing instead on a test that might only be relevant to the "compelling" element. The Court concluded that the Tribunal had misinterpreted the applicable law by requiring a higher standard than that mandated by the regulation.

Orders

Orders of the court

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Background

Background to the litigation

At the commencement of today’s hearing, Mr Dobbie confirmed that the applicant relied on the ground contained in his initiating application filed on 18 September 2014, as follows:“1. The Tribunal misinterpreted the applicable law, and or misapplied the law to the facts, and or failed to conduct the review required of it.Particulars:(i)The Tribunal misinterpreted the applicable law, and or misapplied the law to the facts, and or failed to conduct the review required of it, in relation to the exercise of the waiver contained in subclause 4020(4) of Schedule 4 of the Migration Regulations 1994 ('the regulations').(a) Subclause 572.224(a) required the Applicant to satisfy public interest criterion 4020. The Applicant accepted that he had given a bogus document in support of his student visa application. As such, he was caught by subclause 4020(1) and would not be able to satisfy clause 4020 unless the waiver contained in subclause 4020(4) was found to be met at the time of the Tribunal's decision. Subclause 4020(4) relevantly provided:4020 ...(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:(a) compelling circumstances that affect the interests of Australia; or(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;justify the granting of the visa.(b) The Applicant claimed that the support that he provided to an elderly Australian citizen couple, and the bond that they had, satisfied subclause 4020(4)(b), either on the basis of compassionate circumstances that affect the interests of an Australian citizen, or on the basis of compelling circumstances that affect the interests of an Australian citizen. (c) The Tribunal did not reject the Applicant's claims. It found as a fact that a bond had developed between the Applicant and the Australian citizen couple, and that they had come to rely on him. It then stated:However, the Tribunal is not satisfied that the assistance, support, and companionship which the applicant is providing to those Australian citizens is of such nature or extent as to impact significantly on their health and well-being if he were no longer able to provide it. The Tribunal is not satisfied that the circumstances described by the applicant and his witnesses constitute compassionate or compelling circumstances for the purposes of PIC 4040(4)(b) [sic] (at [20]).(d) The Tribunal misinterpreted the applicable law by requiring a higher test than that required by subclause 4020(4)(b). In relation to compelling circumstances that affect the interests of an Australian citizen, there is no requirement that the Applicant had to show that there would be a significant impact on the health and well-being of the Australian citizen couple, if he were no longer able to provide it (the assistance, support, and companionship).(e) The Tribunal misinterpreted the applicable law by requiring a higher test than that required by subclause 4020(4)(b). In relation to compassionate circumstances that affect the interests of an Australian citizen, there is no requirement that the Applicant had to show that there would be a significant impact on the health and well-being of the Australian citizen couple, if he were no longer able to provide it (the assistance, support, and companionship).(f) In any event, the Tribunal also failed to address the compassionate circumstances that affect the interests of an Australian citizen element contained in subclause 4020(4)(b). Its requirement that the Applicant had to show that there would be a significant impact on the health and well-being of the Australian citizen couple does not address the 'compassionate' element. At best, it might be relevant to the compelling element contained in subclause 4020(4)(b).”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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