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Facts of the case

Discuss about the case study Migration Law for Federal Court.

The Full Court of the Federal Court has issued a decision which has transformed or revolutionized the way application for partner visas are examined in Australia. The decision changed the perspective of the Tribunal to review partner visa application in a different way. The decision promises to create an impact for better lives of many visa applicants. The decision was taken in the case of Waensila v. Minister for Immigration and Border Protection. The applicant, Waensila was a citizen of Thailand and arrived in Australia in the year 2007 in November on Visitor Visa. He applied for protection visa that was unsuccessful in the year 2009 and his case went all the way to the High Court where he lost. In the year 2010, he again applied for partner visa while he was in Australia and at the same time, he did not hold any substantive visa. The Department did not accept the partner visa application on the ground that Waensila failed to satisfy schedule 3 of the Migration Act, that is, when he applied for partner visa the 28 day period for applying substantive visa elapsed many years later (in the year 2008).

The criteria for application of Temporary Partner Visa (subclass 820) is that when an applicant is onshore and an application is made, the applicant should hold some kind of substantive visa at the time of application or they must satisfy the provisions laid in schedule 3 of the Regulations. The applicant should apply for a new visa before expiry of the 28 days of their previous visa. However, application of schedule 3 can be waived if the Minister is of the view that there is presence of compelling or compassionate situation in the case. This rule is contained in sub clause 820.211 (2) (d) (ii) of the Migration Act. Both the Tribunal and the Department held that whatever be the compelling or compassionate circumstances of the case, they should be in existence at the time when the application for partner visa was made.  Additionally, they also made it clear that any application in which compelling situations came up after the partner visa was applied then such situations cannot be taken into consideration. The High Court overturned the decision of the Full Court and it held that if proper interpretation of sub clause 820.211 (2) is conducted then it is not necessary that compelling circumstances exist at the time of making an application. Hence, the Department and the Tribunal were not limited in considering the compelling circumstances that it existed at the time when the application was made. Compelling circumstances that took place even after the application was made can still be taken into consideration.  

Decision of the Tribunal

The applicant relied on many circumstances, which he claimed was part of compelling circumstances and that the schedule 3 criteria should not be applied in this case. The applicant stated that he feared persecution in his country; he feared that if he returned to Thailand he would never be able to meet his wife again and he was concerned about the separation with his wife as this might spoil their relationship. Additionally, the prevailing health condition of his wife was not good, she was reliant on his husband due to her illness, and his wife was financially dependent on him. Since at the time of application of visa these factors were not present, the Department and the Tribunal were of the view that the above-mentioned facts cannot be regarded as compelling as they did not exist at the time of making the application. According to the Full Court, the Tribunal committed jurisdictional error by interpreting sub clause 820.211 (d) (2) (ii) that is at the time of applying for partner visa it is not necessary that the compelling situations exist.

The decision of the Full Court consisted of three judges those are Dowsett, Robertson and Griffiths. The explanation provided by each one of them was different, however, substantially in agreement with one another. According to Judge Robertson, since the Minister has the discretion to apply or to waive schedule three hence he has greater flexibility of approving or denying situations in which compelling circumstances exist. According to the view of Judge Dowsett, since the Minister is granted with the discretion to allow application or rejection of schedule 3 so the discretion cannot be limited in the absence of “statutory or regulatory requirements.” Additionally, sub clause 820.211 (2) (d) (ii) does not lay any requirements as per which any restrictions can be imposed in considering any matter as compelling only to those which are in survival at the time that the partner visa was applied. The reasons given by Judge Griffith can be summarized as follows:

  • As per the heading that is provided in schedule 2 that reads as “criteria to be satisfied at time of application” does not have the influence of restricting the maker of the decision to consider whether there is presence of compelling circumstances at the time of making such application.
  • The power of waiver as contained in sub clause 8320.211 (2) (d) (ii) has expressly stated that the Minister can use his discretion in deciding the case hence he should not be restricted only with existence of compelling conditions at the time of making the application. This is contained in section 65 of Migration Act, 1958.
  • Since the waiver was introduced to lessen hardship hence, it is important that clear words be used in the legislation so that appropriate meaning of the statute is derived.
  • The explanatory statement helps in the understanding of the understanding of the statute in a better way. The explanatory statement of sub clause 820 does not contain any part that stated the circumstances in which schedule 3 waiver can be claimed.

Hence, the decision of the Full Court was extremely significant. This decision has now made it possible for applicants to rely on circumstances have come into existence since the time of application of the partner visa. The decision has also increased the prospectus for applicants who wish to remain with their partners onshore at the time of making the application of visa.

The Judges of the Federal Court that is, Dowsett, Robertson and Griffiths had their own explanations for deciding the case in favor of the applicant. However, after proper analysis of the case it may be concluded that the Judges of the Federal Court relied on the golden rule of interpretation and the Tribunal relied on the literal meaning of the statute. The Tribunal and the Department read the sub clause the way it is written and concluded that schedule 3 of the Act cannot be waived, as the compelling situations did not exist at the time when the application was made.

However, the Federal Court overturned the decision of the Tribunal and held that the words of the statute should not, only be read in its literal way as the sub clause allows the minister to use their discretionary power. Hence, there is no restriction as to when compelling circumstances should exist, that is at the time of visa application or after application of visa. The Federal Court in this case relied on the golden rule of statutory framework. This rule allows the Judge to leave from the normal meaning to avoid ambiguity in the outcome of the result. In this case, the Judges construed the meaning of the act more than its limited sense. The main issue in the appeal was relating to the proper construction of provisions. Particularly the question was whether the Minister is satisfied that there was presence of compelling reasons for not meeting certain criteria for the partner visa. The Minister was actually restricted in considering only compelling reasons that existed at the time of making the application. Hence, the Federal Court removed this ambiguity by stating that the Minister can use their discretion even if compelling situations exist after making application of visa and only at the time of making the application.

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Kennedy, Susan. "Country Advice on the Identity of Stateless People: An Analysis of Australian Country Advice on Stateless Kuwaitis." The International Journal of Social Sciences 26.1 (2014): 106-118.

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Powell, Rebecca, Leanne Weber, and Sharon Pickering. "Counting and accounting for deaths in Australian immigration custody." Homicide studies17.4 (2013): 391-417.

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Volpp, Leti. "Imaginings of space in immigration law." Law, Culture and the Humanities (2012): 1743872111435963.

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