1. In this question, the effect of the decision given in this case by the Federal Court of Australia has been considered. Before discussing the impact of this decision, the brief facts of this case also needs to be mentioned. In this case, a citizen of Thailand had arrived in Australia on a visitor visa. This person applied unsuccessfully for a protection visa. The case went up to the High Court but the applicant would not be successful. Later on, when the person did not have any outstanding visa, an application was made by this person for partner visa while the person was still onshore. However the department refused the application for partner visa on the grounds that in this case the criteria mentioned in Schedule 3 has not been satisfied. Under these circumstances, the applicant cited several circumstances which according to him, amounted to be compelling reasons for waiving the criteria mentioned in Schedule 3. But it was the opinion of the Department and also of the Tribunal that the matters on which the applicant had relied upon, were not present when he had made the application for the grant of the partner visa and as a result, these circumstances cannot be considered as the compelling reasons for waiving the criteria mentioned in Schedule 3. The application for judicial review was rejected by the Federal Circuit Court but the finding of the Full Court was that in this case, the Tribunal as well as the Federal Circuit Court had not interpreted the provisions of subclause 820.211(2)(d)(ii) properly. The result was that it was a finding of the Full Court that the Tribunal had committed a jurisdictional error when it interpreted that meaning of the provision mentioned in sub clause 820.211(2)(d)(ii) that the matters that can be considered as the compelling reasons for waiving the criteria mentioned in schedule 3 should be present when the application for partner visa is being made.
The law provides in this context that for the purpose of being processed, a successful onshore application requires that the primary applicant should have a substantive visa when the application is being made in order to lodge a valid application for visa. But if this is not the case, the law requires that the criteria that have been mentioned in Schedule 3 of the Migration Regulations should be satisfied by the applicant. In this context, the requirements that have been prescribed by the law require that an application for a new substantive visa should be made by the applicant while he or she has a valid substantive visa. However the requirements that are concerned with the Schedule 3 criteria can be waived, in view of sub-clause 820.211(2)(d)(ii) of the Regulations, if the Department believes that there are compelling reasons due to which the criteria mentioned in schedule 3 should not be applied. In the past, before this decision, generally the Department as well as the Tribunal adopted a practice that the requirements of the schedule 3 criteria were considered that were present at the time of the making of the application. The effect of this situation was that the circumstances that were mentioned before the Department or the Tribunal as having an effect on the applicant's situation after the application has been made were not considered while evaluating the application.
But the situation was change as a result of the decision given in this case. The Full Court stated in this case that the legislation does not impose the temporal limitation on the compelling and the compassionate grounds on which the applicant may rely upon while the department or the Tribunal considers the waiver of schedule 3 criteria. In this way, the Court interpreted the provisions of sub-clause 820.211(2)(d) and stated that the impact of the compelling circumstances can be considered even when the application is being evaluated and not only the circumstances that were present at the time of the application. The result of this interpretation was that the Department and the Tribunal was under an obligation to consider the circumstances that existed when they evaluated the application and not only the circumstances of the applicant that existed when the applicant lodged the application.
Dowsett J expressed an opinion that the legislative requirements have not impose a limitation related with the time when the relevant circumstances of the applicant can be evaluated. On the other hand, he expressed the opinion that a decision has been granted to the Minister regarding the waiver power. In this context, it was also mentioned by the Court that the temporal limitation should not be considered as the relevant criterion in itself. Similarly, the opinion of Griffiths J was that the purpose behind the introduction of the waiver power was to do away with the difficulties that were present for the applicants and also to evaluate all the cases individually and keeping in view the personal circumstances of the applicants. Due to the reason that no express provisions exist which place restrictions on the exercise of the compelling circumstances only that were present when the application was made, rejecting the relevant and compelling circumstances of the applicants that existed at the time when the application is being assessed, will not be correct. In this way, it can be said that the implication of the decision given in this case is that the grounds on which the applicants may rely for the waiver of schedule 3 criteria have been significantly expanded. The effect of this situation will be that the chances for the applicants will be increased to remain on-shore while the application is being evaluated. Are the same time, the decision will also have a retrospective effect on the cases that were decided earlier by relying on the compelling circumstances that existed at the time of the application and ignoring the circumstances arising afterwards. Although even now, the relevant cases will still have to be decided on the grounds of the facts of each case but the courts will have the power to review a decision given after the official review period of 35 days as passed.
2. In this question, the principles of statutory interpretation that were relied upon by the Full Court for arriving at the conclusion that the provisions of sub-clause 820.211(2)(d)(ii) provides that the compelling circumstances related with the waiver of schedule 3 criteria should be considered that were present when the circumstances took place. As a result of this interpretation of the provision, the Department as well as the Tribunal were under an obligation to consider the circumstances that were present at the time of considering the application and not only the circumstances that were present when the application was made.
In this context, the Migration Regulations, 1994 provide in Sub-clause 820.211(2)(d)(ii) that the criteria mentioned in schedule they can be made only if the Department is of the opinion that compelling reasons exist for not applying it. Generally the department adopted the practice in this regard that the circumstances that existed when the application was made were to be considered by the department. The result was that the other compelling circumstances that arose after the application was lodged, and were brought to the notice of the Department or the Tribunal as having an impact on the applicant's situation, were not considered while evaluating the application.
Due to the approach that was adopted by the Full Court in deciding that the legislation has not imposed temporal limitation in case of the compelling circumstances that can be considered when the matter of the schedule 3 criteria was evaluated. Therefore, while interpreting these provisions, it was the opinion of the full court that the circumstances that came into existence after the application for visa was lodged, can also be considered and therefore it was not restricted to the circumstances that were in existence at the time of the application made for waiving schedule 3 criteria. The effect of this statutory interpretation adopted by the Court was that the Department and the Tribunal were required to consider the circumstances that came into existence when they were evaluating the application and not only the circumstances that were present when the applicant had made the application.
Waensila v Minister for Immigration and Border Protection  FCAFC 32
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