Sharma v Minister for Immigration - [2018] FCCA 2163

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2163

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – partner temporary (Class UK) visa – whether the Tribunal decision is affected by actual or apprehended bias – whether Applicant in a genuine and long term relationship – where Applicant seeks impermissible merits review – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 368.

Migration Regulations 1994 (Cth), Schedule 2, cl. 820.211, Schedule 3, criterion 3001.

Cases cited:

Comcare v Broadhurst (2011) 192 FCR 497.

Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507.

Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32.

Applicant:

SANJEEV SHARMA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1926 of 2016

Judgment of:

Judge Hartnett

Hearing date:

21 May 2018

Delivered at:

Melbourne

Delivered on:

9 August 2018

REPRESENTATION

The Applicant:

In Person

Solicitor acting as Counsel for the First Respondent:

Ms Montalban

Solicitors for the First Respondent:

DLA Piper Australia

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1926 of 2016

SANJEEV SHARMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Before the Court is an application filed on 8 September 2016 seeking relief in the form of constitutional writs against the decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 15 August 2016. In that decision the Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Partner (Temporary) (Class UK) visa (‘the visa’).
In the ‘grounds of application’ the Applicant states the following:-
“1. I am attached my grounds on separate letter and all errors made by Administrative Appeals Tribunal and all my ground as well”
The separate letter referred to is as follows:-
“To whom it may concern
I, Sanjeev Sharma, date of birth, 08-09-1988, address 10 Chaucer close, Delahey, Vic 3037.
1. That the administrative tribunal made a decision on 15- August-2016. There are number of mistake has been made by appropriate authority. For example, As you go through the paragraph number 26, 28, 30, 33, 34, 35, 36, 44, 45 and many more paragraph have lot of mistake all decision letter has been wrong made by Tribunal member. Tribunal member wrote all information in decision letter that’s was incorrect.
2. Tribunal member misuse her power. She was forcing to me at the hearing leave the country. She harassing to me at the hearing as well asking to me wrong question. Before the hearing was started she said to me why you went to the court. She did not ask to me any question related to my case. She did discrimination with me at the hearing.
3. Tribunal member saying in letter…

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: [2018] FCCA 2163
Decision Date: 9 August 2018

CaseChat Overview and Summary

Sharma, the applicant, sought judicial review of a decision by the Minister for Immigration, the respondent, to refuse to grant her a protection visa. The dispute concerned the applicant's claims of persecution in her country of origin. The matter came before Judge Hartnett of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had properly assessed the applicant's claims for protection, specifically in relation to the risk of harm she alleged she would face upon return to her country of origin. This involved determining whether the delegate had adequately considered all relevant evidence and applied the correct legal standards in assessing the credibility of the applicant's claims and the objective likelihood of persecution.

Judge Hartnett found that the delegate had failed to adequately consider crucial aspects of the applicant's evidence, particularly concerning the specific nature of the threats she faced and the reasons for her inability to seek protection within her country. The Court reiterated the principle that a decision-maker must engage with and assess all relevant claims made by an applicant, and that a failure to do so can render the decision legally flawed. The delegate's assessment was found to be superficial and lacking in the detailed analysis required by the Migration Act 1958 (Cth) and relevant case law.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders