Hossain v Minister for Immigration and Border Protection [2018] HCA 34

HIGH COURT OF AUSTRALIA

KIEFEL CJ, GAGELER, KEANE, NETTLE AND EDELMAN JJ

SORWAR HOSSAIN APPELLANT

AND

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR RESPONDENTS

Hossain v Minister for Immigration and Border Protection [2018] HCA 34 15 August 2018 S1/2018

ORDER

The appeal is dismissed with costs.

On appeal from the Federal Court of Australia

Representation

G O'L Reynolds SC with B M Zipser and D P Hume for the appellant (instructed by Mooney & Kennedy Solicitors)

C J Horan QC with T Reilly for the first respondent (instructed by Sparke Helmore Lawyers)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Hossain v Minister for Immigration and Border Protection

Migration – Partner visa – Criteria prescribed for grant of visa – Where Minister for Immigration and Border Protection must refuse to grant visa if not satisfied that criteria prescribed for grant of visa met – Where delegate of Minister refused to grant visa – Review of decision by Administrative Appeals Tribunal – Where Tribunal not satisfied that visa application made within 28 days or that there were compelling reasons for not applying that criterion – Where Tribunal also not satisfied that visa applicant did not have outstanding debts to the Commonwealth or that appropriate arrangements had been made for payment of debts – Where Tribunal made error of law by assessing whether compelling reasons existed as at time of visa application instead of as at time of Tribunal's decision – Whether error of law in relation to one criterion was jurisdictional error where another criterion was not met.

Words and phrases – "compelling reasons", "discretion to refuse relief", "error of law", "error of law on the face of the record", "fundamental error", "independent basis", "jurisdictional error", "materiality", "non-jurisdictional error", "reasonably and on a correct understanding and application of the applicable law", "residual discretion", "satisfied", "void", "voidable".