Hasani v Minister for Home Affairs - [2020] FCCA 2662

FEDERAL CIRCUIT COURT OF AUSTRALIA

HASANI v MINISTER FOR HOME AFFAIRS & ANOR

[2020] FCCA 2662

Catchwords:
MIGRATION – Partner visa – waiver of criteria - whether tribunal failed to give proper and genuine consideration to evidence said to amount to ‘compelling reasons’ – whether failure to consider claim – whether failure to have regard to corroborative evidence – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.368(1)(f), (4), (4)(a), 368(2), 368(2A), 378(1),

Migration Regulations 1994 (Cth), cl.3001(2)(c)(i) & (iii), 3003, 3004 of Sch.3 and 820.211, 820.221(2)(d), of Sch.2

Cases cited:

BYM16 v Minister for Immigration and Border Protection [2017] FCCA 2445

Applicant:

DITMIR HASANI

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 44 of 2018

Judgment of:

Judge Heffernan

Hearing date:

11 November 2019

Date of Last Submission:

11 November 2019

Delivered at:

Adelaide

Delivered on:

7 October 2020

REPRESENTATION

Counsel for the Applicant:

Ms E Anag

Solicitors for the Applicant:

Christopher Levingston & Associates Lawyers

Counsel for the Respondents:

Ms N Milutinovic

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The application is dismissed.
The applicant is to pay the costs of the first respondent in the amount of SEVEN THOUSAND, FOUR HUNDRED AND SIXTY SEVEN DOLLARS ($7,467).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 44 of 2018

DITMIR HASANI

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 2 January 2013 which affirmed an earlier decision of a delegate of the first respondent not to grant the applicant a Partner (Temporary)(Class UK) visa (‘the visa’) pursuant to the Migration Act 1958 (Cth) (‘the Act’). The delegate had found that the applicant did not meet the requirement that he must have applied for the visa within 28 days of holding a substantive visa. The delegate was not satisfied that there were compelling reasons for not applying that requirement.

Application to amend grounds

The applicant was represented and at the time of filing his outline of submissions sought to amend his application so…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 2662
Decision Date: 7 October 2020

CaseChat Overview and Summary

The applicant, Mr Hasani, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the Minister for Home Affairs' refusal to grant him a partner visa. The central dispute concerned whether the Tribunal had adequately considered evidence presented by Mr Hasani, which he contended constituted 'compelling reasons' for a waiver of certain visa criteria.

The primary legal issues before the Federal Court were whether the AAT had failed to give proper and genuine consideration to the evidence Mr Hasani submitted as amounting to compelling reasons for a waiver, and whether the Tribunal had failed to consider a specific claim made by Mr Hasani, as well as his corroborative evidence.

Judge Heffernan found that the Tribunal's decision-making process did not demonstrate a failure to consider the evidence or the claims made by the applicant. The Court concluded that the Tribunal had regard to the evidence presented, including corroborative material, and that its assessment of whether compelling reasons existed for a waiver was within its proper function. The application for judicial review was therefore dismissed.

Orders