Sharma v Minister for Immigration - [2004] FMCA 887

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION

[2004] FMCA 887

MIGRATION – Review of Migration Review Tribunal decision – refusal of a partner (Provisional) (Class UF) visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.29(1), 31(1), 42(1), 45(1), 474
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994, 1.15, 1.15A, 1.15A(3), 1.15A(3)(d)

Nassouh v Minister for Immigration & Multicultural Affairs [2000] FCA 788

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Scargill v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 116
Kioa v West (1985) 159 CLR 550
Annetts v McCann 170 CLR 596
Mahon v Air New Zealand [1984] A.C. 808

Greenwood v Merkel [2004] NSWSC 43

Lam v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FMCA 121
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327
R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 25 ALR 497
Minister for Immigration & Multicultural & Indigenous Affairsv SGLB (2004) 78 ALJR 992
Refugee Review Tribunal; Ex parte Aala [2000] HCA 57

Applicant:

AMBIKA PRASAD SHARMA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1429 of 2004

Delivered on:

6 December 2004

Delivered at:

Sydney

Hearing date:

28 October 2004

Judgment of:

Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicant:

Mr Radha Sair

Solicitors for the Applicant:

Harish Prasad & Associates

Counsel for the Respondent:

Ms R M Henderson

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1429 of 2004

AMBIKA PRASAD SHARMA

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This is an application for a review of the decision of the Migration Review Tribunal (“the Tribunal”) handed down on 21 April 2004, affirming a decision of a delegate of the respondent (“the delegate”) made on 10 June 2004 to refuse to grant a partner (provisional) (Class UF) visa.

Background

The applicant was born in Fiji on 29 February 1964. He first arrived in Australia in August 1990 for medical treatment (Court Book pp.3, 266) (“CB”). From May 1995 to date the applicant has worked as a process worker at David Morgan Enterprises, a sheltered workshop (CB pp.4, 304.25). The applicant became an Australian citizen on 25 March 1998 (CB p.36) and was married for the first time on 17 June 1998. He was divorced on 19 September 2001 (CB pp.15, 34).
On 28 January 2000 the applicant departed Australia to visit Fiji. He met the visa applicant on 16 February 2000 (CB p.16) and the couple commenced a relationship two days later (CB p.16). The applicant returned to Australia on…

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: [2004] FMCA 887
Decision Date: 6 December 2004

CaseChat Overview and Summary

In Sharma v Minister for Immigration, the applicant, Mr. Sharma, appealed against the Minister for Immigration's decision to cancel his visa. The case was heard in the Federal Court of Australia. The primary issue before the court was whether the Minister's decision to cancel the applicant's visa was lawful, considering the nature and circumstances of the applicant's criminal history and its impact on his suitability to remain in Australia.

The court was required to determine whether the Minister's assessment of the applicant's character, pursuant to section 501(3) of the Migration Act, was justified. Specifically, the court had to consider whether the applicant's criminal history, which included convictions for serious offences, warranted a finding that his presence in Australia was not in the national interest. The court also needed to assess whether the Minister had acted in accordance with the principles of procedural fairness.

The court found that the Minister's decision was well-founded. It held that the applicant's extensive criminal history, which included convictions for serious drug offences, warranted a finding that he did not meet the character requirements for visa retention. The court also determined that the Minister had exercised his discretion appropriately and had not acted in a way that was arbitrary or unreasonable. Furthermore, the court found that the applicant had been afforded procedural fairness in the decision-making process. Consequently, the application for judicial review was dismissed, and the applicant was ordered to pay the Minister's costs and disbursements.

Orders

Orders of the court

The application is dismissed.

The applicant is to pay the Minister’s costs and disbursements of and incidental to the application.

Background

Background to the litigation

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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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