Sharma v Minister for Immigration

In the Federal Circuit Court of Australia, Judge Mercuri considered the case of Sharma and another applicant against the Minister for Immigration. The dispute concerned whether a decision by a delegate of the Minister to refuse to grant a visa was a "Part 5 – reviewable decision" under the *Migration Act 1958* (Cth). This classification was critical as it determined whether the applicants had a right to seek merits review of the visa refusal.

The central legal issue before the Court was the interpretation and application of section 338(2)(d) of the *Migration Act*. This provision outlines specific requirements for a visa refusal to be considered a Part 5 – reviewable decision, particularly where the visa requires sponsorship. The Court had to determine whether the applicants satisfied the conditions stipulated in section 338(2)(d) at the time they lodged their application for review.

The Court reasoned that section 338(2)(d) imposed conditions relating to sponsorship at the time of the application for review. The evidence before the Tribunal indicated that at the time the applicants filed their review application on 21 April 2017, their original sponsor was no longer an approved standard business sponsor, and any nomination had ceased by operation of law. Furthermore, subsequent applications for sponsorship approval and nominations had been rejected or otherwise finalised, with no pending review. While a new entity, KLM Foods, had lodged applications for sponsorship and nomination on 29 March 2017, these had not been determined by the date of the Tribunal's decision. Consequently, the Court found that the requirements of section 338(2)(d) were not met.