Sharma v Minister for Immigration

[2018] FCCA 3647

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3647

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e)

First Applicant: SUSHMITA RAHUL SHARMA

Second Applicant: RAHUL SHARMA

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 510 of 2016

Judgment of: Judge Vasta

Hearing date: 29 November 2018

Date of Last Submission: 29 November 2018

Delivered at: Perth

Delivered on: 29 November 2018

REPRESENTATION

There being no appearance by or on behalf of the First or Second Applicant.

Counsel for the First Respondent: Mr P. Hannan

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001, the Application filed 19 October 2016 is dismissed.

2. That the First and Second Applicant pay the costs of the First Respondent fixed in the sum of $7,238.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

No. PEG 510 of 2016

SUSHMITA RAHUL SHARMA

First Applicant

RAHUL SHARMA

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 19 October 2016, the Applicants, Sushmita Rahul Sharma and Rahul Sharma, applied to this Court for a review of a decision of the Administrative Appeals Tribunal (“the AAT”).  That decision was given on 7 October 2016 and it affirmed a decision not to grant the Applicants a temporary business entry visa.

2. The facts, in very short compass, are that the application that the Applicants made was for what is known colloquially as a 457 visa.  For that to occur, there has to be an approved nomination from an employer and then, once the approved nomination has been made, then the nominees can request a visa, having had that nomination of the employer.  If there is no employer nomination, then the visa simply cannot be given.

3. The First Applicant, Sushmita Rahul Sharma, was nominated for the position of contract administrator in a cleaning business run by Yes V Clean (WA) Proprietary Limited.  The company directors of Yes V Clean are Ms Sushmita Rahul Sharma and the other Second Applicant, Rahul Sharma.  The delegate of the Department refused the nomination application on 15 June 2015.  The Applicants lodged an application for review with the Tribunal, however the Tribunal affirmed the decision to refuse the nomination on 17 August 2016.

4. This meant that their applications for 457 visas were doomed.  This information was put to the Applicants and they responded by asking for more time, as they were seeking legal advice on lodging a judicial review application in relation to the nomination refusal.  There was no evidence that a judicial review application had been made, so the Tribunal wrote to the Applicants again, pursuant to s.359(2), inviting them to provide information that they were the subject of an approved business nomination which has not ceased.

5. They were warned that, if they did not respond with the information by the due date of 5 October 2016, they would lose their entitlement to a hearing and that the Tribunal may proceed to make a decision on their review.  They did not respond with the requested information. 

6. Accordingly, pursuant to s.359 and s.360, the Tribunal found that the Applicants were not entitled to appear before the Tribunal.  The Tribunal then considered the matter.  As I have said, there is no current nomination application before the department.  The Applicants were not the subject of an approved nomination.  Therefore, the requirements could not have been met.

7. Unsurprisingly then, the Tribunal affirmed the decision not to grant the temporary business visas. 

8. The Applicants lodged this application, as I have said, on 19 October 2016 and Registrar Trott made the usual orders and I made an order in chambers on 10 August 2018, listing the matter before me today.  I have now been given the contents of Exhibit 1 which show that the Second Applicant asked for an adjournment and, upon realising that that was not going to be agreed to by the Minister, then said that he wished to withdraw his application because he had to go to India and would not be in Australia at the time of this application.

9. Given the history of the matter and the merits of the matter, I have decided to act in accordance with r.13.03C(1)(e) and determine the matter on the merits. The originating application had three grounds:

   1. The tribunal failed to give me procedural fairness by not inviting me to a hearing.

   2. The tribunal did not give an opportunity to properly respond.

   3. The tribunal’s decision was illogical.

10. There has been no other material that has been submitted by the Applicants in this matter, notwithstanding the orders of Registrar Trott to provide written submissions.  Dealing with the Grounds,

    a)Ground 1 shows no error because the Tribunal did give an invitation to the hearing. 

    b)Ground 2:  the Tribunal did give an opportunity to properly respond and that was ignored.  So there is no merit in ground 2. 

    c)Ground 3:  that the Tribunal’s decision was illogical has no merit either.  The Tribunal’s decision was the only one that was open to it according to law. 

11. Therefore, I find that there has been no jurisdictional error.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 10 January 2019