Hassan v Minister for Immigration

This matter concerned an application for judicial review under s 476 of the *Migration Act 1958* (Cth) of a decision by the Administrative Appeals Tribunal. The Tribunal had affirmed a decision by a delegate of the Minister for Home Affairs to refuse Mr Muhammad Hassan, a citizen of Pakistan, a Partner (Temporary) (Class UK) Visa. Mr Hassan had arrived in Australia in 2010 on a student visa, which expired in January 2011, and applied for the partner visa in September 2016, some five years later.

The primary legal issue before the court was whether the Tribunal erred in law by affirming the refusal of the visa. Specifically, the court was required to determine if the Tribunal correctly applied the provisions of Schedule 3 to the *Migration Regulations 1994* (Cth) to Mr Hassan's application. Under subclause 820.211(2)(d)(ii) of Schedule 2 to the Regulations, an applicant who is not the holder of a substantive visa must satisfy Schedule 3 criteria 3001, 3003, and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. Criterion 3001 requires the applicant to have applied for the visa within 28 days of the expiry of their last substantive visa.

The court noted that it was incontrovertible that Mr Hassan did not satisfy criterion 3001, as he applied for the visa more than five years after his last substantive visa expired. The Tribunal was therefore required to consider whether there were "compelling reasons" not to apply the Schedule 3 criteria. The Tribunal concluded that it was not satisfied that such compelling reasons existed and affirmed the delegate's decision. The court was asked to review this determination.