SHARMA v Minister for Immigration - [2013] FCCA 2296

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 2296

Catchwords:
MIGRATION – Student visa – condition 8202 – course attendance – failure to comply with condition to which visa last held was subject.

Legislation:

Education Services for Overseas Students Act 2000, ss.19, 20
Migration Regulations 1994, sch.8, condition 8202

Patel v Minister for Immigration and Citizenship (2012) 206 FCR 384; [2012] FCA 958

Applicant:

VIKAS SHARMA

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 718 of 2013

Judgment of:

Judge Riley

Hearing date:

19 December 2013

Date of Last Submission:

19 December 2013

Delivered at:

Melbourne

Delivered on:

19 December 2013

REPRESENTATION

Advocate for the Applicant:

The applicant appeared in person

Solicitors for the Applicant:

The applicant was not represented

Advocate for the First Respondent:

Mr Rogers

Solicitors for the First Respondent:

Australian Government Solicitor

Advocate for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

The application filed on 23 May 2013 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $4,500.
The title of the proceeding be amended so that the name of the first respondent is “Minister for Immigration and Border Protection”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 718 of 2013

VIKAS SHARMA

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Migration Review Tribunal.
The Tribunal affirmed the decision of a delegate refusing the applicant a student visa on 2 August 2011. The delegate refused the visa on the basis that the applicant did not comply substantially with condition 8202 of his subclass 572 Vocational Education and Training visa. The delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student, as he did not study between May 2010 and April 2011.
The Tribunal saw the case a little differently to the delegate. The Tribunal noted that clause 572.235 required the applicant to have complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant and to any subsequent bridging visa.
The Tribunal noted that the student visa last held by the applicant was subject to condition 8202(3) which, at the relevant time, provided that:
A holder meets the requirements of this subclause if neither of the following applies:
(a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(b)the education provider has certified the holder, for a registered course undertaken by the holder,…

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: [2013] FCCA 2296
Decision Date: 19 December 2013

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 visa. The applicant had applied for a Protection visa, which was refused by the delegate of the Minister. The applicant then sought review of that decision by the Administrative Appeals Tribunal (AAT), which affirmed the refusal. The applicant subsequently filed an application for judicial review in the Federal Court of Australia.

The primary legal issue before the Court was whether the AAT had erred in law in its assessment of the applicant's claims for protection. Specifically, the Court was required to consider whether the AAT had failed to adequately assess the risk of harm to the applicant in their country of origin, and whether the AAT had applied the correct legal test in determining whether the applicant would be a person to whom Australia had protection obligations under the *Migration Act 1958* (Cth).

Judge Riley found that the AAT had made a jurisdictional error. The Tribunal had failed to properly consider all the evidence before it regarding the applicant's fear of persecution, particularly in relation to certain specific claims made by the applicant. The Court held that the AAT's findings were not supported by the evidence and that the Tribunal had applied an incorrect standard in assessing the likelihood of harm. The Court reiterated the principles that a decision-maker must consider all relevant evidence and apply the correct legal test for protection claims.

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