Sharma v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 812

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Sharma v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 812

File number(s): MLG 2033 of 2019
Judgment of: JUDGE FARY
Date of judgment: 2 June 2025
Catchwords: MIGRATION - application for judicial review – student (Temporary) (Class TU) (Subclass 573) visa – where Administrative Appeals Tribunal affirmed decision not to grant applicant the visa as applicant did not comply with condition 8202(2)(a) – whether Tribunal erred by failing to provide genuine consideration to applicant’s personal circumstances – found no jurisdictional error on behalf of the Tribunal – application dismissed.
Legislation:

Australian Constitution s75(v)

Migration Act 1958 (Cth) s 116, s 140, s 474, s 476

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 1 Pt 2 Sch 2

Migration Legislation Amendment (2016 Measure No. 1) Regulation 2016 (Cth) Item 32 of Sch 4

Migration Regulations 1994 (Cth) cl 500.211 – cl 500.218, Condition 8202(2)(a)
Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21

El Ess and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43

Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172

Gupta v Minister for Immigration & Border Protection (2017) 255 FCR 486

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152

Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 2

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506

MZARG v Minister for Immigration and Border Protection [2018] FCA 624

Nathanson v Minister for Home Affairs (2022) 276 CLR 80

NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176

Oshlack v Richmond River Council (1998) 193 CLR 72

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Twomey v Que 5 Pty Ltd [2023] FCA 1155

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Division: Division 2 General Federal Law
Number of paragraphs: 103
Date of last submission/s: 29 May 2025
Date of hearing: 29 May 2025
Place: Melbourne
Applicant: In person
Solicitor for the First Respondent: Ms Birman, Australian Government Solicitor
Solicitor for the Second Respondent: Submitting notice, save as to costs

ORDERS

MLG 2033 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

VIVEK SHARMA

Applicant
AND:

MINISTER OF IMMIGRATION AND CITZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE FARY

DATE OF ORDER:

2 JUNE 2025

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.

2.The application be dismissed.

3.The applicant pay the first respondent’s costs of and…

Continue reading Sharma v Minister for Immigration and Multicultural Affairs

Sign in free to access the full text

Details
AGLC
Sharma v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 812
Case
[2025] FedCFamC2G 812
Decision Date

CaseChat Overview and Summary

In the case of Sharma v Minister for Immigration and Multicultural Affairs, the applicant, Mr. Sharma, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) which upheld the Minister's decision to cancel his student visa. The applicant argued that the AAT failed to genuinely consider his personal circumstances when affirming the decision to cancel his visa. The Federal Court was tasked with determining whether the AAT had made a jurisdictional error in its review of the decision to cancel the visa.

The primary legal issue before the court was whether the AAT erred in failing to provide genuine consideration to the applicant's personal circumstances. The court had to assess the AAT's reasoning and the extent to which it took into account the applicant's personal situation when affirming the Minister's decision. The court also examined whether the AAT had properly exercised its discretion in reviewing the decision to cancel the visa.

The court found that the AAT had not made a jurisdictional error in its review of the Minister's decision. It held that the AAT had considered the applicant's personal circumstances and had provided adequate reasons for affirming the decision to cancel the visa. The court determined that the AAT's consideration of the evidence and the arguments presented by the applicant was sufficient and did not amount to a failure to genuinely consider the applicant's personal circumstances. Consequently, the court dismissed the applicant's application for judicial review.

The court's decision was based on the thorough and reasoned approach taken by the AAT in reviewing the Minister's decision. It found that the AAT had adequately considered the evidence and arguments presented by the applicant and had exercised its discretion appropriately. As a result, the court upheld the AAT's decision to affirm the Minister's decision to cancel the applicant's visa. The court did not make any further orders beyond dismissing the application for judicial review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 10 February 2017, a delegate of the Minister cancelled the Visa (Delegate’s Decision).[6] The Delegate was satisfied that there was grounds for cancellation pursuant to s 116(1)(b) of the Migration Act and his failure to comply with condition 8202(2)(a). The Delegate was further satisfied that the Visa should be cancelled in exercise of the discretionary power under s 116(1)(b) on the basis that the cancellation outweighed the grounds for not cancelling.[7][6] CB 31-43. [7] CB 39, 42. On 17 February 2017, the Applicant applied to the Tribunal for review.[8][8] CB 44-45. On 20 February 2017, the Tribunal acknowledged receipt of the Applicant’s Application for review.[9][9] CB 46-49. On 19 March 2019, the Tribunal wrote to the Applicant inviting him to attend a hearing on 15 May 2019.[10][10] CB 50-53. On 26 March 2019, the Applicant’s migration agent (Migration Agent) wrote to the Tribunal submitting an appointment of representation form and requested that the hearing be moved to Melbourne as the Applicant had relocated.[11][11] CB 54-56. On 28 March 2019, the Tribunal wrote to the Applicant’s Migration Agent granting the request for the Tribunal hearing to be conducted in Melbourne.[12][12] 57-60. On 5 April 2019, the Applicant’s Migration Agent requested access to all documents held by the Department and the Tribunal in relation to the Applicant’s Visa Application.[13] On this date, the Tribunal wrote to the Applicant’s Migration Agent granting access to the material.[14][13] CB 61.[14] CB 63-64. On 5 April 2019, the Applicant’s Migration Agent emailed a scanned response to the hearing notice sent by the Tribunal requesting a Punjabi interpreter.[15][15] CB 65-68. On 8 April 2019 and 1 May 2019, the Applicant’s Migration Agent sent the Tribunal change of contact detail forms.[16][16] CB 69-75. On 8 May 2019, the Applicant’s Migration Agent wrote to the Tribunal attaching written submissions.[17][17] CB 76-190. On 9 May 2019, the Applicant’s Migration Agent wrote to the Tribunal attaching a signed statement by Ajaydeep Uppal in support of the Application.[18][18] CB 191-193. On 13 May 2019, the Applicant’s Migration Agent wrote to the Tribunal attaching amendments to the written submissions sent on 8 May 2019.[19][19] CB 194-200. On 15 May 2019, the Applicant’s Migration Agent emailed the Tribunal a letter issued by ACOT confirming the Applicant’s current enrolment status and progress.[20] [20] CB 212-217. On 15 May 2019, the Applicant attended the Tribunal hearing with the assistance of a Punjabi interpreter, Migration Agent, witness and support person.[21][21] CB 218. On 16 May 2019, the Applicant’s Migration Agent wrote to the Tribunal requesting a copy of the hearing recording.[22][22] CB 221-223. On 21 May 2019, the Tribunal sent an email to Front Cooking School asking whether the Applicant gave reasons for seeking a release from his studies.[23][23] CB 224-226. On 21 May 2019, the Tribunal sent an email to Holmesglen Institute asking for the reasons provided by the Applicant for discontinuing his enrolment.[24][24] CB 226-228.

Ratio Decidendi

Legal Principle Established

On 26 March 2019, the Applicant’s migration agent (Migration Agent) wrote to the Tribunal submitting an appointment of representation form and requested that the hearing be moved to Melbourne as the Applicant had relocated.[11][11] CB 54-56. On 28 March 2019, the Tribunal wrote to the Applicant’s Migration Agent granting the request for the Tribunal hearing to be conducted in Melbourne.[12][12] 57-60. On 5 April 2019, the Applicant’s Migration Agent requested access to all documents held by the Department and the Tribunal in relation to the Applicant’s Visa Application.[13] On this date, the Tribunal wrote to the Applicant’s Migration Agent granting access to the material.[14][13] CB 61.[14] CB 63-64. On 5 April 2019, the Applicant’s Migration Agent emailed a scanned response to the hearing notice sent by the Tribunal requesting a Punjabi interpreter.[15][15] CB 65-68. On 8 April 2019 and 1 May 2019, the Applicant’s Migration Agent sent the Tribunal change of contact detail forms.[16][16] CB 69-75. On 8 May 2019, the Applicant’s Migration Agent wrote to the Tribunal attaching written submissions.[17][17] CB 76-190. On 9 May 2019, the Applicant’s Migration Agent wrote to the Tribunal attaching a signed statement by Ajaydeep Uppal in support of the Application.[18][18] CB 191-193. On 13 May 2019, the Applicant’s Migration Agent wrote to the Tribunal attaching amendments to the written submissions sent on 8 May 2019.[19][19] CB 194-200. On 15 May 2019, the Applicant’s Migration Agent emailed the Tribunal a letter issued by ACOT confirming the Applicant’s current enrolment status and progress.[20] [20] CB 212-217. On 15 May 2019, the Applicant attended the Tribunal hearing with the assistance of a Punjabi interpreter, Migration Agent, witness and support person.[21][21] CB 218. On 16 May 2019, the Applicant’s Migration Agent wrote to the Tribunal requesting a copy of the hearing recording.[22][22] CB 221-223. On 21 May 2019, the Tribunal sent an email to Front Cooking School asking whether the Applicant gave reasons for seeking a release from his studies.[23][23] CB 224-226. On 21 May 2019, the Tribunal sent an email to Holmesglen Institute asking for the reasons provided by the Applicant for discontinuing his enrolment.[24][24] CB 226-228. On 22 May 2019, the Applicant’s Migration Agent wrote to the Tribunal attaching further submissions.[25][25] CB 230-240. On 24 May 2019, the Tribunal sent a further email to Front Cooking School.[26][26] CB 243-244. On 29 May 2019, the Tribunal received an email from Front Cooking School with reasons for the Applicant’s cancellation of his studies.[27][27] CB 245-248. On 3 June 2019, the Tribunal notified the Applicant of its decision to uphold the Delegate’s Decision.TRIBUNAL’S DECISION The Tribunal’s Decision is at 252 to 262 of the Court Book. The Tribunal first outlined the background to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [3] to [6].