Sharma v Minister for Immigration and Border Protection

In *Sharma v Minister for Immigration and Border Protection*, Emmett J considered an application for judicial review of a decision made by the Migration Review Tribunal (MRT). The applicant sought a visa, lodging her application on 18 March 2009. However, the application was not finally determined until 22 August 2012, after the commencement date of 2 April 2011 for certain amendments to the Migration Regulations 1994. The core of the dispute concerned the applicability of Particulars of Interest (PIC) 4020 to the applicant's visa application.

The primary legal issue before the court was whether PIC 4020, as amended by the Amendment Regulations, applied to the applicant's visa application. This involved interpreting regulation 5(2) of the Amendment Regulations, which stipulated the circumstances under which the amendments would apply, specifically referencing applications made before or after 2 April 2011 and whether they had been finally determined. A secondary issue arose regarding the MRT's handling of the applicant's request for a waiver of PIC 4020(1) and whether its failure to consider or provide reasons for not waiving this requirement constituted a jurisdictional error.

Emmett J reasoned that regulation 5(2) of the Amendment Regulations clearly indicated that the amendments applied to applications made before 2 April 2011 that had not been finally determined by that date. As the applicant's application met this criterion, PIC 4020 was applicable. Consequently, the court found that the grounds asserting the invalidity and non-applicability of PIC 4020 to the applicant were not made out, and the MRT had not misapplied the law in applying it. However, the court also found that the MRT had committed a jurisdictional error by failing to consider the applicant's evidence regarding a waiver of PIC 4020(1) or to provide reasons for its decision not to grant such a waiver.

Accordingly, Emmett J ordered that the MRT's decision of 28 February 2014 be set aside and remitted to the MRT for redetermination according to law.