Sharma v Minister for Immigration and Citizenship [2026] FCA 269

1. Mr Sharma is an Indian national who first arrived in Australia as a holder of a Temporary Graduate (subclass 485) visa. In February 2018, Mr Sharma applied for a Regional Employer Nomination (Permanent) (Class RN) visa (Regional Employer visa) under the Subclass 187 visa Regional Sponsored Migration Scheme. His application was refused by a delegate of the first respondent (Minister) on the basis that his application did not satisfy the necessary criteria for such a visa in cl 187.223 of Schedule 2 to the Migration Regulations 1994 (Cth) because the nomination application by Shivram Australia Pty Ltd (the nominator), which underpinned the sponsorship application, had been refused.
2. The legislative scheme requires that a nominator must make a nomination application and that application be approved in order for a Regional Employer visa to be granted. Mr Sharma claims that the nominator had engaged in various forms of unlawful conduct including fraud. It is worthwhile briefly setting out the chronology here of the relevant events concerning the intersection between the nomination application and the Regional Employer visa application. As adverted to above, in February 2018, Mr Sharma applied for a Regional Employer visa in relation to a nomination by the nominator. The nominator had also made an application for approval. On 30 September 2019, a delegate of the Minister refused to grant the nominator's application. Shortly thereafter, on 31 October 2019, a delegate of the Minister refused Mr Sharma's application on the basis that he did not meet cl 187.223 of the Regulations because the nominator's nomination application had been refused.
3. In November 2019, Mr Sharma sought unsuccessful merits review of the delegate's decision before the former Administrative Appeals Tribunal. On 6 April 2021, the Tribunal affirmed the delegate's decision to refuse his application while acknowledging Mr Sharma's claims that he had been the subject of visa fraud and that the nominator had sought payments from him to sponsor the visa and had then withdrawn their nomination review application. The Tribunal found that Mr Sharma had failed to satisfy cl 187.233(3) in Schedule 2 of the Regulations as the criterion for the grant of the visa had not been met given the absence of an approved associated nomination application.
4. Mr Sharma then sought judicial review of the Tribunal's decision and on 22 August 2022 the Federal Circuit and Family Court of Australia dismissed that judicial review application: Sharma v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 612 (primary judgment or PJ).
5. By notice of appeal filed on 8 September 2022, Mr Sharma appeals the decision of the primary judge. The notice of appeal advances three grounds of appeal, which are discussed below. For the reasons set out below, the appeal must be dismissed.

1. The Tribunal identified that the following criteria must be met:

19 Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

20 In addition, this criterion also requires that:

• the person who will employ the applicant is the person who made nomination
• the nomination has been approved and has not been subsequently withdrawn
• there is no 'adverse information' known to Immigration about the person who made the nomination or a person 'associated with' that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information
• the position is still available to the applicant, and
• the visa application was made no more than six months after the nomination of the position was approved.

1. The Tribunal recorded that Mr Sharma had given evidence that he had been subject to visa fraud and that the nominator had sought numerous payments from him to sponsor him for a subclass 187 visa, of which he had paid. Mr Sharma stated to the Tribunal that the nominator told him that the money was to be invested in a new restaurant in Dubbo where Mr Sharma would work. The money would be regarded as a loan and would be repaid to him. Unfortunately, when Mr Sharma relocated to Dubbo, the proposed restaurant was closed and Mr Sharma commenced employment with the nominator at another establishment where he claims he was subject to harassment, underpaid and did not receive entitlements including superannuation. When Mr Sharma demanded his money back and told the nominator that he would be lodging a complaint, the nominator withdrew their review application with the Tribunal.
2. The Tribunal found that the nomination application associated with the position had not been approved. Therefore, Mr Sharma did not meet cl 187.233(3) of the Regulations and in the result the Tribunal affirmed the decision under review.

1. In the primary proceeding, Mr Sharma raised four grounds of judicial review as follows:

1. The decision of the Tribunal is a deprivation of natural justice and fairness as I told the Tribunal exactly what happened to me at the hand of my sponsor. The Tribunal failed to investigate the fraud caused by the nominator and that I was a victim at the hand of the nominator.

2. The Tribunal failed to subpoena or contact the nominator who cheated me and stole my money as well as harassed me and deprived me of my entitlements.

3. The Tribunal failed to accept and act upon the nominator's withdrawal of nomination.

4. The Tribunal failed to consider my complaint with the Fair Work Ombudsman as well as the Department and contrary to the finding of the Tribunal it was necessary to contact the said witnesses and such did not happen.

1. The primary judge acknowledged that, if Mr Sharma's claims were accepted, he had been a victim of the nominator's fraudulent behaviour. The primary judge noted that, notwithstanding Mr Sharma's claims, he could not be granted the Regional Employer visa without an approved nomination by an employer and therefore the Tribunal had no other option open to it than to affirm the delegate's decision given Mr Sharma could not meet the criterion of cl 187.233 of Schedule 2 of the Regulations.
2. The primary judge also noted that, even if the grounds of judicial review had merit, there would be little point in remitting the matter back to the Tribunal for further consideration as the Tribunal would be obliged to affirm the decision of the delegate to refuse Mr Sharma's visa application.
3. In relation to grounds one and two of the application advanced by Mr Sharma the primary judge found the following:

[22] In terms of the actual grounds of judicial review relied upon, grounds one and two assert that the Tribunal failed to make inquiries as to the allegations of fraud and misconduct raised by the applicant. As noted by the respondent, the Tribunal does not have a general duty to inquire. The Court's role is to determine whether the decision is infected by jurisdictional error by reference to the complaints made by the applicant. Jurisdictional error will only occur if the Tribunal fails to make an obvious inquiry about a critical fact the existence of which is easily ascertained: (see; Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [1] and [25]).

[23] Further, the fraud described by the applicant was on the part of the nominator, not on the Tribunal. Thus the Tribunal was not disabled from carrying out its task by the fraud, so as to establish jurisdictional error: (see; Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 100 ALD 443 at [32]- [33]). No duty to inquire therefore arose.

[24] In terms of the claims of a denial of natural justice, no error on the part of the Tribunal is apparent. The Tribunal complied with the various procedural requirements set out in Division 5 Part 5 of the Act. This included asking the applicant to comment pursuant to s 357A of the Act on various issues that were determinative of the review. The applicant was properly invited to attend a hearing pursuant to s 360 of the Act and had the opportunity of giving evidence and presenting arguments.

[25] One error is conceded by the first respondent. The decision of the delegate referred to subclause 187.223 of Schedule 2 to the Regulations. It should have referred to cl 187.233 of the Regulations. This was noted by the Tribunal at paragraph 5 of its decision record. It was referred to in the s 359A of the Act letter and discussed with the applicant during the course of the hearing. Any error on the part of the delegate was then corrected by the Tribunal and cured the defect by the delegate: (see; Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495 at [92]). Grounds one and two have no merit.

1. The primary judge found that ground three was misconceived: That ground contended that the Tribunal failed to accept and act upon the nominator's withdrawal of the nomination. The withdrawal was expressly referred to in paragraph [10] of the decision record. The primary judge found that there is a strong inference that the withdrawal was the basis for the ultimate decision at [25] when the Tribunal stated "having considered the evidence before it". This necessarily included the withdrawal.
2. In relation to ground four, the primary judge found the following:

[27] Ground four is a complaint that the Tribunal failed to consider the complaint to the Fair Work Ombudsman and it was necessary for the Tribunal to contact the witnesses nominated by the applicant. It was for the applicant to provide such evidence to support his application for review. While the applicant notified the Tribunal of a wish to call evidence pursuant to s 361(3) of the Act, while the Tribunal must have regard to the request the Tribunal is not required to obtain the evidence from the persons nominated. Further, given the issues under consideration by the Tribunal, the Court is of the view that any evidence that may have been provided by the proposed witnesses would not have assisted the applicant and would not have been dispositive if the issues under review. The fact that the applicant had lodged a complaint about the nominator was a fact that the Tribunal considered and accepted at paragraph [24]. The applicant is then recorded as indicating that he concurred that the Tribunal was not required to contact the witnesses. Accordingly no error arises and the ground has no merit.

1. Ultimately, the primary judge found that there had been no jurisdictional error but expressed sympathy for Mr Sharma's circumstances.

1. Clause 187.233 of Schedule 2 of the Regulations reads as follows:

187.233

(1) The position to which the application relates is the position:

(a) nominated in an application for approval that:

(i) identifies the applicant in relation to the position; and

(ii) is made in relation to a visa in a Direct Entry stream; and

(iii) seeks to meet the requirements of sub-regulation 5.19(12); and

(b) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

(2) The person who will employ the applicant is the person who made the nomination.

(3) The Minister has approved the nomination.

(4) The nomination has not subsequently been withdrawn.

(4A) Either:

(a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

(b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

(5) The position is still available to the applicant.

(6) The application for the visa is made no more than 6 months after the Minister approved the nomination.

1. Mr Sharma submitted that, firstly, he continues to rely on the grounds in his application under the Migration Act 1958 (Cth) as well as the reasons listed at [14] of the primary judgment. Mr Sharma thereafter effectively repeated his grounds of appeal. He submitted that the primary judge noted that he had been the victim of fraudulent behaviour of the nominator and was sympathetic in his judgment. Mr Sharma also submitted that he believes neither the Tribunal in their decision nor the primary judge demonstrated a genuine intellectual engagement in his claim that fraud was committed by the nominator and that he was not given natural justice as a result of the fraud.
2. Further, Mr Sharma contended that even though his "application was not subject to an approved nomination as a result of the fraud committed by [the] sponsor, [he believes] that his application would have been considered by the Tribunal as well as by the [FCFCOA] and such was not considered in spite of the fact that [his] case does not and did not lack evident and intelligent justification". Mr Sharma submitted that the decision by the Tribunal was plainly unjust and unreasonable and that the evidence before the Tribunal as well as the primary judge was not comprehended by both the Tribunal and the primary judge.
3. Mr Sharma propounded that he is confident that both the Tribunal as well as the primary judge are aware of the meaning of fraud which is a conduct which vitiates every transaction known to the law. He implored this Court to act on the fraud committed by the sponsor and quash the decision of the Tribunal or recommend to the Minister that it intervene in his case especially because the Tribunal failed to consider whether the nomination withdrawal was legally valid, failed to investigate whether the withdrawal was connected to fraud or to call his nominated witnesses and take evidence from them.
4. Mr Sharma submitted that he hopes that the Court will consider whether the Tribunal applied the correct law as well as followed procedural fairness and considered relevant evidence properly and whether it finally made a logical decision. Mr Sharma acknowledged that he understands that no approved nomination did and continues to affect the decision of the Tribunal but the behaviour of the sponsor was clearly unethical and unlawful because the sponsor always demanded payment, always promised work in a restaurant in Dubbo and Mr Sharma is a victim as he experienced harassment and underpayment.

1. It may be accepted there are occasions where allegations of fraud have an effect on the resolution of claims in this area. Where fraud stultifies the Tribunal's processes, such that the Tribunal is disabled as to its capacity to carry out its statutory task, this may constitute jurisdictional error: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; 245 ALR 501 at [32]- [33]. This may include where the fraudulent conduct of a third party (for example, fraudulent advice) stultifies the operation of natural justice such that the Tribunal is taken to have not exercised its jurisdiction and there is no decision at all: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189. Further, the fraudulent conduct of a migration agent has had the effect of there being a fraud "on" the administrative decision-maker, in the sense that the fraud affects the decision-maker's statutory functions and obligations or adversely affects them, by disabling or stultifying the processes which the Act prescribed.
2. However, the difficulty here is that the alleged fraud, whilst terrible, did not stultify the Tribunal's nor the FCFCOA's powers. The powers of the Minister, the Tribunal and the FCFCOA are limited. A person's eligibility for a sponsorship visa is predicated, amongst other things, on the Minister's approval of the nomination application. There was no such approved nomination application at the time that the Minister and thereafter the Tribunal considered Mr Sharma's application. Accordingly, whatever the alleged fraud may have been that occurred before the nomination application was refused and the circumstances in which the nominator's review application was withdrawn, that alleged fraud did not affect the Tribunal's, and thereafter the FCFCOA's, power to carry out their respective statutory tasks.

1. By ground one, Mr Sharma contended that, while the primary judge was sympathetic in his judgment, he continues to believe that the grounds in the judicial review application were not properly considered. It is unclear whether ground one is pitched against the Tribunal decision or the primary judgment. If the former, it is unclear to which grounds are referred. In any event, the ground was not articulated in the Court below.
2. In order to successfully invoke an allegation of a "failure to consider", such a claim may only be raised where the purported failure would or could be dispositive of the review: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [63].
3. The unfortunate reality of this case is that the primary judge did consider Mr Sharma's claims but found that, without the essential ingredient (a valid sponsor nomination) which underpinned his visa application, there was no basis upon which his application could be accepted. The primary judge, nonetheless, considered each of the four grounds of judicial review that were pleaded, and ultimately found no jurisdictional error within the Tribunal decision. I can discern no error in the primary judge's reasons.

1. By ground two, Mr Sharma contended that the Tribunal has not demonstrated a genuine intellectual engagement with his claims and evidence, and that the Tribunal failed to accept the fraud committed by his sponsor. There is a danger in using generic labels like "genuine intellectual engagement". They must be understood and only applied in their proper context (that is, what the alleged claimed failure of the decision-maker was). While Mr Sharma did not articulate an error in the primary judgment, he claimed that this was an "error of law". The first allegation was not articulated in the same terms in the Court below. However, each of the judicial review grounds allege that the Tribunal failed to investigate, accept, or consider elements of his claims or evidence. The second allegation forms part of judicial review ground one.
2. I do not accept that this ground can be made out. The Tribunal acknowledged Mr Sharma's claim that he had been the victim of fraud from the nominator, who had sought payments from him to sponsor him for the visa, who then withdrew the review application with the Tribunal when Mr Sharma asked for his money back and informed the nominator he would be lodging a complaint. However, the Tribunal then went on to apply the relevant law and found Mr Sharma did not satisfy cl 187.233 because the nomination application associated with the position was not approved.

1. By ground three, Mr Sharma contended that he expected this Court to agree with his view and accord him natural justice and fairness as he is a victim and the negligence from the Tribunal is a serious matter. Ground three was not articulated below. It does not allege jurisdictional error in either the Tribunal nor the primary judgment. I do not accept that the Tribunal erred in its reasoning or in the procedural powers it exercised or did not exercise. The Tribunal did not have an obligation to investigate the alleged fraud. I do not accept that by virtue of Mr Sharma's claim to being a victim of fraud he was denied natural justice. The Tribunal considered (as it was required to) each of Mr Sharma's claims but was faced by the insurmountable problem: Mr Sharma could not be granted the type of visa he sought without having an approved nomination by an employer.

1. For these reasons, the appeal must be dismissed and Mr Sharma be ordered to pay the Minister's costs as agreed or assessed.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper.