Sharma v Minister for Immigration and Border Protection

In the matter of Sharma v Minister for Immigration and Border Protection, the appellants sought judicial review of a decision by the Migration Review Tribunal, which had concluded it lacked jurisdiction to review a decision to refuse the appellants a Temporary Business Entry (Class UC) subclass 457 visa. The Federal Circuit Court dismissed the application for judicial review, and the appellants now appeal to the Federal Court of Australia. The central issues before the court were whether the appellants were sponsored by an approved sponsor and whether there was a pending application for review of the decision not to approve the sponsor as a standard business sponsor.

The court considered whether the term "sponsored" in subpara s 338(2)(d)(i) of the Migration Act 1958 (Cth) could include being identified in a nomination under s 140GB of the Act. The court also examined the primary judge's interpretation of the term in Kandel v Minister For Immigration & Anor and whether this was correct. The court concluded that the primary judge's interpretation in Kandel was correct and that the tribunal had jurisdiction over the appellants' case. The court further held that the primary judge erred in their interpretation of s 338(2)(d)(ii) of the Act, which concerns the application for review of the decision not to approve the sponsor. The court found that the primary judge had misconstrued the section and that an application for review of the decision not to approve the sponsor included an application for review of a decision not to approve an application by the sponsor for approval of a nomination of an occupation in relation to the applicant under s 140GB of the Act.

The appeal was allowed, the orders of the Federal Circuit Court were set aside, and the matter was remitted to the Migration Review Tribunal for hearing and determination according to law. The court declared that the second respondent had jurisdiction in relation to the application for review dated 3 December 2013. The first respondent was ordered to pay the costs of the first and second applicants, as well as the costs of the appeal.