Hasan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The matter before the court involved an application for an extension of time and leave to appeal the orders of the Federal Circuit and Family Court of Australia (Division 2) which dismissed an application to reinstate a matter previously dismissed due to the applicants' failure to appear. The applicants, Rafiqul Hasan and his wife Shahanaj Parvin Nipa, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) affirming the Minister's delegate's decision to refuse their visa application. The primary judge found that the application to review the AAT's decision had no realistic prospect of success and it would be futile to reinstate it, particularly as the applicants could not satisfy a mandatory requirement for the grant of a Regional Employer Nomination (subclass 187) Visa under the Direct Entry Scheme, which was the lack of an approved employer nomination.

The court was required to decide whether the application for an extension of time and leave to appeal should be granted. The applicant argued that both the Tribunal and the primary judge failed to consider his arguments regarding the approved nomination by his employer. He claimed that when he initially applied for the visa, his employer had applied to be an approved sponsor and the delegate wrongly refused the nomination. The employer subsequently applied for review of this decision with the Tribunal, which found it was without jurisdiction due to the employer's deregistration. The applicant argued that because his employer was a registered corporation when he applied to the Tribunal for review of the Minister's decision, the legal question was whether the company was ineligible to sponsor someone or a liquidated entity at the time of the application.

The court found that the application for an extension of time and leave to appeal should be dismissed. The court reasoned that the applicant's arguments did not address the fundamental issue that he could not satisfy the mandatory requirement for an approved employer nomination. The court found no merit in the applicant's contention that the Tribunal and primary judge failed to consider his arguments regarding the approved nomination. The court noted that the employer had applied to the Tribunal for review of the delegate's refusal of the nomination, but the Tribunal concluded it did not have jurisdiction because the employer was deregistered. The court held that the applicant's arguments did not illuminate any error by the primary judge in the exercise of his discretion not to reinstate the review application.

The court dismissed the application for an extension of time and leave to appeal and ordered that the applicants pay the respondent's costs as agreed or assessed.