Hassan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2014

Hassan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2014

Leave to amend was refused because the proposed new ground had no apparent merit. PAM3 did not state or imply that every person seeking the waiver was presumed to be seeking an unfair advantage or to have manipulated circumstances, was not wholly negative, and did not dictate rejection of a long-standing relationship as a compelling reason. The 1996 Explanatory Statement did not contain a "two year rule" and only broadly informed the exercise of power. The facilitative nature of cl 820.211(2)(d)(ii) did not alter the meaning of "compelling reasons" or permit waiver where the decision-maker was not satisfied that reasons were compelling. As the appellant relied on no original ground of...

Jurisdiction
Australia
Judgment Date
02 December 2019
Procedural Posture
Migration Appeal From Decision of the Federal Circuit Court of Australia Dismissing Judicial Review of Administrative Appeals Tribunal Decision Refusing Partner Visas / Application for Leave to Amend Notice of Appeal and Appeal
Outcome
Application for leave to amend the notice of appeal refused; appeal dismissed with costs.
Legal Topics
['partner Visa' 'schedule 3 Criterion 3001' 'compelling Reasons' 'pam3 Policy' 'jurisdictional Error' 'leave to Amend Notice of Appeal']
['migration Law' 'administrative Law'] ['partner Visa' 'schedule 3 Criterion 3001' 'compelling Reasons' 'pam3 Policy' 'jurisdictional Error' 'leave to Amend Notice of Appeal']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Migration Appeal From Decision of the Federal Circuit Court of Australia Dismissing Judicial Review of Administrative Appeals Tribunal Decision Refusing Partner Visas / Application for Leave to Amend Notice of Appeal and Appeal

Legal Issues

  1. 1 ['Whether leave should be granted to amend the notice of appeal to raise a ground not advanced before the Federal Circuit Court of Australia.' 'Whether the Tribunal erred by having regard to PAM3 on the basis that the policy was ultra vires the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth).' 'Whether Babicci and MZYPZ were distinguishable in construing "compelling reasons" in cl 820.211(2)(d)(ii).' 'Whether PAM3 impermissibly fettered consideration of compelling reasons or was inconsistent with the facilitative nature of s 48 and cl 820.211(2)(d)(ii).']

Ratio Decidendi

Leave to amend was refused because the proposed new ground had no apparent merit. PAM3 did not state or imply that every person seeking the waiver was presumed to be seeking an unfair advantage or to have manipulated circumstances, was not wholly negative, and did not dictate rejection of a long-standing relationship as a compelling reason. The 1996 Explanatory Statement did not contain a "two year rule" and only broadly informed the exercise of power. The facilitative nature of cl 820.211(2)(d)(ii) did not alter the meaning of "compelling reasons" or permit waiver where the decision-maker was not satisfied that reasons were compelling. As the appellant relied on no original ground of...

Court Disposition

Application for leave to amend the notice of appeal refused; appeal dismissed with costs.

Orders

  • ['The name of the first respondent be changed to "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs".' 'The application for leave to amend the notice of appeal be refused.' 'The appeal be dismissed.' "The appellant pay the first respondent's costs of the appeal."]