Federal Court of Australia Judgment: Sharma v Minister for Immigration and Border Protection [2015] FCA 984

 
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Melbourne: Federal Court of Australia has issued the following press release:

FEDERAL COURT OF AUSTRALIA

Sharma v Minister for Immigration and Border Protection [2015]

Citation:

Sharma v Minister for Immigration and Border Protection [2015]

Appeal from:

Sharma v Minister for Immigration & [2015]

Parties:

NEHA SHARMA and VISHAL TRIKHA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL

File number

VID 253 of 2015

Judge

NORTH J

Date of judgment:

19 August 2015

Legislation:

Migration Regulations 1994 (Cth), Schedule 2, cl. 572.227

Date of hearing:

19 August 2015

Place:

Melbourne

Division:

GENERAL DIVISION

Category:

No Catchwords

Number of paragraphs:

Counsel for the Appellants:

The appellant appeared in person.

Solicitor for the Respondents:

Ms P Mitchell of Clayton

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 253 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

NEHA SHARMA

First Appellant

VISHAL TRIKHA

Second Appellant

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE

NORTH J

DATE OF ORDER:

19 AUGUST 2015

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellants are to pay the first respondent’s costs fixed at $4,800.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

253 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SHARMA

First Appellant

VISHAL TRIKHA

Second Appellant

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE

NORTH J

DATE:

19 AUGUST 2015

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

1Before the Court is an appeal from orders made by the Federal Circuit Court on 7 May 2015 dismissing an application for review of a decision of the Migration Review Tribunaldated 11 February 2014. The Tribunal affirmed the decision of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellants tudentemporary) () visas.

2Neha Sharmathe firs appellant, referred to in these reasonsthe appellant, is married to Vishal Trikha the second appellant. On 11 October 201he appellant appliedthrougha migration agent, to the Department of Immigration and Citizenship (as it then was) for a student visa, and the second appellant applied for a secondary as her spouseended to her application was a document entitled Exceptional circumstances which compelled me to lodge this visa application in Australia without holding a student vi which stated:

I am in Australia currently living with my husband. I finished my in August 2010. I intend to complete Diploma of Business in Australia and return to India and search for a reasonable employment. Getting my Australian Diploma would be of a great advantage to me. This would mean a bigger and better chance of getting a job with my Masters from India. Australian educational certificates also recognised all over the world. If not able to find a suitable job, I would be able to set up my own business for which my Diploma of Business would be an added advantage.

Moreover, while I do this course, I can live with my husband in Australia. We got married very recently and we do not intend to live apart at this moment of time. If I have to return to India to lodge my student visa application, my in-laws will not allow me to return to Australia to study or to live with my husband for several years. I am ashamed to state that in our culture, I am supposed to look after my parents-in-law and obey what they decide and my husband will not be able to help me in this regard.

In view of the above, I request you to kindly grant me the visa applied for, so that I would be able to live with my husband and complete my studies.

3On 23 October 2012, the delegate of the Minister notified the appellant, email to her migration agent, of the refusal of her application for a student visa for the reason that she did not satisfy cl. 572.227 in Schedule 2 ofMigration Regulations 1994 (Cth)which required that “the applicant establishes exceptional reasons for the grant of a Subclass 57visa.”

4In refusing her application, the delegate referred to the appellant’s claimed reasons

Under policy, exceptional reasons for the grant of a Student visa onshore may include an improvement in bilateral relations, significant economic benefit to Australia, that the applicant is the dependant of a departing temporary resident, or that the applicant is a former Student visa holder. Circumstances of this nature envisage significant benefit to Australia, or that the applicant has previously been studying in Australia for a period of time as given above.

I accept that Ms Sharma would like to obtain a degree in Australia and defer returning to India, however the circumstances that she has...

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