Pokharel v Minister for Immigration

This matter concerned an application for judicial review brought by Mr Pokharel against the Minister for Immigration. The applicant sought to challenge a decision made by the Second Respondent, which was understood to be the Migration Review Tribunal. The core of the dispute revolved around the Tribunal's handling of the applicant's request for an adjournment and its assessment of whether the applicant's daughter met certain health criteria under Public Interest Criterion (PIC) 4005 of the *Migration Regulations 1994*.

The court was required to determine whether the Tribunal's refusal to grant an adjournment to obtain further material was affected by jurisdictional error, and whether the Tribunal had denied the applicant natural justice. Additionally, the court considered whether the decision to proceed with the review was unfair and unjust, and whether the Tribunal had contravened specific sections of the *Migration Act 1958*. A significant issue was whether the Tribunal had failed to determine if PIC 4005 was satisfied as at the date of the hearing, and whether it had misconceived its task by failing to properly consider the opinions of Medical Officers of the Commonwealth and the relevance of the applicant's daughter's condition at the time of the hearing.

The court noted that the applicant abandoned grounds relating to natural justice and unfairness. The Tribunal had granted an adjournment to the first respondent, but not to the applicant. The court highlighted that the health criteria under PIC 4005 must be satisfied at the time of the decision. The first respondent argued that the applicant's reference to the date of the hearing was a mischaracterisation, and that the relevant criteria were to be satisfied at the time of the delegate's decision, not the Tribunal hearing. The court observed that the applicant's daughter was two years and twenty-three days old at the time of the hearing. The court also noted a potential typographical error in the first respondent's reference to clause 885.225, with the relevant regulation likely being clause 885.226.