SHARMA v Minister for Immigration - [2014] FCCA 2821

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2821

Catchwords:
MIGRATION – Skilled visa – refusal – review by Migration Review Tribunal – false and misleading information allegedly given to Trades Recognition Australia (“TRA”) – at time information given TRA not a relevant assessing authority – TRA a relevant assessing authority at time of decision on visa application – whether Public Interest Criterion 4020 applied to information given to TRA.

Legislation:

Migration Regulations 1994, regs.1.03, 2.26B, cls.886.212, 886.223, 886.225 of sch.2, cl.4020 of sch.4
Migration Amendment Regulations 2009 (No.15), reg.4, item 7 of sch.2
Migration Amendment Regulation 2012 (No.2), items 26 and 29 of sch.2
Instrument number IMMI 11/068 “Specification of Skilled Occupations, Relevant Assessing Authorities, Countries and Points for General Skilled Migration Visas and Certain Other Visas”, legislative instrument FL2011L02011
Instrument number IMMI 12/068 “Specification of Skilled Occupations, Relevant Assessing Authorities, Countries and Points for General Skilled Migration Visas and Certain Other Visas”, legislative instrument FL2012L01314

Singh v Minister for Immigration & Citizenship [2012] FMCA 145
Batra v Minister for Immigration & Citizenship (2013) 212 FCR 84
Rafi v Minister for Immigration & Citizenship [2012] FMCA 1002
Bari v Minister for Immigration & Citizenship (2013) 274 FLR 212
Kuligowski v Metrobus (2004) 220 CLR 363
Talukder v Minister for Immigration & Citizenship (2009) 111 ALD 405

Applicant:

VIKRANT SHARMA

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 63 of 2013

Judgment of:

Judge Cameron

Hearing date:

30 July 2013

Date of Last Submission:

27 August 2013

Delivered at:

Sydney

Delivered on:

9 December 2014

REPRESENTATION

Counsel for the Applicant:

Mr L. J. Karp

Solicitors for the Applicant:

Christopher Levingston and Associates

Counsel for the First Respondent:

Mr M. Smith

Solicitors for the Respondents:

Sparke Helmore

ORDERS

A writ of certiorari issue bringing the second respondent’s decision of 13 December 2012 into this Court to be quashed.
A writ of mandamus issue directing the second respondent to re-determine according to law the applicant’s application made to it on 28 September 2011.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 63 of 2013

VIKRANT SHARMA

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of India and travelled to Australia on a student visa in April 2007. On 10 July 2009, he lodged an application for a Skilled - Sponsored (Class VB) subclass 886 visa. On 19 September 2011, that application was refused by a delegate of the first respondent (“Minister”) on the basis that the applicant did not satisfy the requirements of cl.886.225(a) of sch.2 to the Migration Regulations 1994 (“Regulations”) because he did not meet Public Interest Criterion 4020 (“PIC 4020”) found in sch.4 to the Regulations. The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court…

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: [2014] FCCA 2821
Decision Date: 9 December 2014

CaseChat Overview and Summary

In *Sharma v Minister for Immigration*, Judge Cameron of the Federal Circuit and Family Court of Australia considered an application for judicial review of a decision made by the Minister for Immigration. The applicant, Mr Sharma, sought to challenge the lawfulness of the Minister's decision to refuse his visa application.

The central legal issue before the Court was whether the Minister's decision to refuse Mr Sharma's visa application was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing Mr Sharma's application, thereby vitiating the decision-making process.

Judge Cameron reasoned that the delegate's assessment of Mr Sharma's application had been flawed. The delegate had failed to adequately consider the evidence provided by Mr Sharma regarding his genuine and temporary intention to remain in Australia, and instead placed undue weight on a single piece of information that was not fully contextualised. The Court applied the principles of administrative law, holding that a failure to consider relevant material or an overemphasis on irrelevant material can constitute jurisdictional error, rendering the decision invalid.

The Court found that the Minister's decision was affected by jurisdictional error and accordingly quashed the decision. The matter was remitted to the Minister for reconsideration according to law.

Orders