Explain in plain English the practical implications of the decision of the Federal Court in Waensila v Minister for Immigration and Border Protection  FCAFC 32
There are certain significant implications attached with the decision given by the court in this case, particularly related with partner visa. In this case, it was unanimously decided by the Full Court of the Federal Court of Australia that no "temporal limitation" has been imposed, regarding the time of the persuasive conditions that have been relied upon concerning the schedule 3 waiver need to be present. In this regard, it was mentioned by the court that as a result of the interpretation of sub-clause 820.211(2)(d)(ii), it can be said that the compelling circumstances can be considered by the court, regardless of the fact when these circumstances the place. In this way, this decision implies that the Department and also the Tribunal is not limited to considering the persuasive circumstances that were in existence at the time of making the application. Therefore, the department can consider the circumstances that the place even after the application was made and should consider these circumstances. In the opinion of the Court, as the purpose behind the discretion granted to the Minister is with a view to provide greater flexibility regarding the relevant circumstances and for example, for the purpose of dealing with the hardships that are faced by the applicants, it will not be consistent with the purpose mentioned above if an interpretation of the above provision is adopted according to which, the circumstances that can be considered in this regard only the circumstances that place when the application was made.
In this case, Dowsett J stated that the circumstances on which the Department or the Tribunal may rely upon for the purpose of justifying the use of discretion of not applying the waiver under schedule the should not be restricted as a result of the lack of statutory requirements. The court also pointed out towards the fact that in sub-clause 820.211(2)(d)(ii), there is no requirement according to which a restriction has been placed on the matters that can be treated as compelling as only the circumstances that existed when the application for partner visa was made.
In this context, the reasoning adopted by Griffith J was that the authority of waiving the requirements that were present in schedule 3 were not in itself a criterion mentioned by Part 822 Schedule 2. The result was that he opined that the title that was given to clause 820.21 being the “criteria that needs to be satisfied at the time of application” cannot be considered as having the effect of limiting the consideration of the person making the decision to the convincing circumstances that existed at the time of the making of the application.
The waiver power that has been prescribed by sub-clause 8320.211(2)(d)(ii) has been mentioned in the following terms. It says that the Minister is “satisfied that compelling reasons exist for not applying schedule 3” and as a result, it can be said that the waiver power can be used while deciding the issue related with the grant of visa and consequently, the matters that can be considered in this regard should not cover only the matters that were present at the time of the making of the application but also to the matters that had arisen when the decision was being made.
Due to the reason that the waiver power has been introduced with a view to decrease the difficulties faced by the applicants, it was significant that the wording should be used by the law, restricting the matters that can be considered. As in this case, such language does not exist, in the opinion of the Court, it will not be appropriate to interpret these regulations as providing that the reasons that can be considered are restricted to the circumstances that were present at the time of making the application. Nothing is present in the Explanatory Statement to the amendments that have been used this provision in 820.211(2)(d)(ii) that can reflect that the circumstances that can be considered while deciding the issue of the waiver of schedule 3 need to be present when the application was made and not afterwards.
Under these circumstances, it can be said that the significance of this decision is present in the fact that it has been unanimously decided by the Full Court that the above mentioned provisions do not result in imposing a temporal limitation of the compelling and compassionate grounds that can be considered while dealing with the issue of waiver of Schedule 3 criteria. The effect is that while interpreting 820.211(2)(d), it was mentioned by the court that the effect of the compelling circumstances will be carried through to the time when the application was being assessed the, and not only at the time of the making of the application. Therefore, in view of this decision, the Department and Tribunal will have an obligation of considering the circumstances of the applicants that existed when the application was being evaluated.
In this way, a significant implication of this decision is that the grounds have been expanded, that can be relied upon by the applicants when they make an application for the waiver of schedule 3 criteria. In the same way, this decision also has the implication that it increases the chances of such an applicant to remain on shore while there application is being processed. In this context, it can also be stated that the effect of this decision will be retrospective, dealing with the previous cases by relying on the compelling circumstances that existed when the decision on the application was made and not only the circumstances that existed at the time of the making of the application.
In this way, keeping aside its current policy, the Department and the Tribunals will have to abide by this decision or until this decision is overruled by the High Court. Till then, as a result of the effect of this decision, while dealing with the issue of the waiver of schedule 3 criteria, a much wider scope of circumstances need to be considered by the decision-makers when we are dealing with such an application. In this way, significant implications of this decision are present, particularly relating with the application for partner visa.
Acts Interpretation Act 1901
Migration Act 1958
Migration Regulations (Amendment) 1996 No 75 (Cth), Explanatory Statement
Migration Regulations 1994Waensila v Minister for Immigration and Border Protection  FCAFC
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