SHARMA v Minister for Immigration

[2015] FCCA 1699

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1699

Catchwords:
MIGRATION – Migration Review Tribunal – Temporary Business Entry (Class UC) subclass 457 Temporary Work (Skilled) visa – whether the Tribunal had jurisdiction – no jurisdictional error.

Legislation:  

Migration Act 1958, ss.338(2)(d)(i), 338(2)(d)(ii), 476

Ahmad v Minister for Immigration & Anor [2015] FCCA 1496
Minister for Immigration & Border Protection v Lee [2014] FCCA 2881

First Applicant: MANISHA SHARMA

Second Applicant: RAHUL SHARMA

Third Applicant: KRISH SHARMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1201 of 2015

Judgment of: Judge Street

Hearing date: 19 June 2015

Date of Last Submission: 19 June 2015

Delivered at: Sydney

Delivered on: 19 June 2015

REPRESENTATION

Counsel for the Applicant: Mr O. Jones

Solicitors for the Respondent:

Ms B. Rayment

Mills Oakley Lawyers

ORDERS

1. The application be dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the sum of $3500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1201 of 2015

MANISHA SHARMA

First Applicant

RAHUL SHARMA

Second Applicant

KRISH SHARMA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration  Act 1958 in respect of a decision the Tribunal made on 1 April 2015 holding that the Tribunal does not have jurisdiction.

2. The application identifies the following grounds:

   1.  The Second Respondent made a jurisdictional error by failing to exercise jurisdiction.

   Particulars

   a. The Second Respondent misconstrued s 338(2) (d) (ii) of the Migration Act 1958 (Cth) (Act).

   b. The Second Respondent reasoned that an "application for review of decision not to approve the sponsor" within the meaning of s 33 8(2) (d) (ii) of the Act did not include an application for review of a decision not to approve an application by the sponsor for approval of a nomination of an occupation in relation to the Applicant under s 140GB of the Act when read with reg. 2.72 of the Regulations.

   c. An "application for review of a decision not to approve the sponsor" within the meaning of s338 (2)(d)(ii) of the Act:

   i. is no confined to an application for review of a decision not to approve an app1ication by the sponsor to be approved as a standard business sponsor under s 140E of the Act when read with reg. 2.59 of the Migration Regulations 1994 (Cth) (Regulations); and

   ii. includes an application for review of a decision not to approve an application by the sponsor for approval of a nomination of an occupation in relation to the Applicant under s 140GB of the Act when read with reg. 2.72 of the Regulations.

3. On 15 November 2013 the delegate refused the application for a Temporary Business Entry (Class UC) subclass 457 Temporary Work (Skilled) visa on the basis that the prescribed criteria for approval under cl.457.223(4)(d) had not been met.  Relevantly, the delegate held:

   I do not consider the position associated with the nominated occupation to be genuine, and the primary application does not meet subpara.457.223(4)(d)(ii).

4. It was in those circumstances that the delegate refused the application for grant of the Temporary Business Entry (Class UC) subclass 457 Temporary Work (Skilled) visa and the Tribunal noted that the members of the family unit did not provide claims against the primary criteria for the Subclass 457 – Temporary Work (Skilled) visa and, therefore, did not meet any of the prescribed criteria for a Temporary Business Entry (Class UC) visa. The delegate also found that the above listed members of the family unit did not meet reg.457.321 and did not meet the prescribed secondary criteria for a Sub-class 457 – Temporary Work (Skilled) visa and, accordingly, the application of the members of the family unit for a Temporary Business Entry (Class UC) visa was refused.

5. The Tribunal wrote to the applicant on 17 March 2015 identifying the potentially dispositive issue arising from a want of jurisdiction under s.338(2)(d)(i) and s.338(2)(d)(ii) of the Migration Act 1958.  The Tribunal followed the decision of Minister for Immigration & Border Protection v Lee [2014] FCCA 2881 in relation to the proper construction and s.338(2)(d)(i) and found that the applicant did not meet that requirement. The Tribunal then turned to consider the requirement of s.338(2)(d)(ii) and held that there was no pending review of the sponsorships decision within s.338(2)(d)(ii). That decision was correct for the reason given by this Court in Ahmad v Minister for Immigration & Anor [2015] FCCA 1496.

6. Mr Jones of counsel has put a formal submission challenging the decision of Ahmad and drawing attention to the fact that that decision is the subject of appellant challenge. No argument was developed to distinguish the reasoning in Ahmad and consistent with that decision, the decision of the Tribunal that the requirements of s.338(2)(d)(ii) were not met was correct.

7. I should note that Mr Jones of counsel did tender evidence that identified the lodging of an application for review of the refusal of the business nomination one minute before the lodging of the application for review on 3 December 2013. I also note that, in this case, that application was one which was successful before the Migration Review Tribunal on 10 February 2015 where the Tribunal set aside the decision not to approve the application and the decision that the nomination was approved.  That application for a review was not, however, an application for review of a decision not to approve the sponsor, but does identify the facts in this case as being consistent with the facts in Ahmad so far as the lodgement of an application for review of the refusal of the business nomination.

8. Consistent with the approach to construction adopted by this Court in Ahmad there was no misconstruction of s.338(2)(d)(ii) by the Tribunal and, accordingly, there was no jurisdictional error. The application is dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  30 June 2015