Implications of the Decision of the Federal Court

Question: Discuss about the Implications of the Decision of the Federal Court. Answer: Introduction: In this part of the assignment, the implications of the decision given by the Federal Court of Australia in Waensila v Minister for Immigration and Border Protection have been discussed. The brief facts of this case are that a citizen of Thailand had originally arrived in Australia on a visitor visa. He had unsuccessfully applied for protection visa and the case went up to the high court but he remained unsuccessful. Afterwards, when he did not have any outstanding visa, he made an application for a partner these while still being onshore. The partner Visa application was refused by the department on the ground that schedule 3 criteria was not satisfied. The application tried to rely on several circumstances that, according to him amounted to compelling reasons for the waiver of schedule 3 criteria. However the Department as well as the Tribunal were of the opinion that as the matters relied upon by the applicant were not present when the application for partner Visa was made, they cannot amount to the compelling reasons for waiving the Schedule 3 criteria. Although the application for judicial review was not successful in the Federal Circuit Court, however the Full Court came to the conclusion that sub-clause 820.211(2)(d)(ii) has not been properly interpreted by the Tribunal and also by the Federal Circuit Court. Therefore the Full Court arrived at the conclusion that a jurisdictional error was committed by the Tribunal when it construed the meaning of sub-clause 820.211(2)(d)(ii) as being that the only matters that can be treated as the compelling reasons for waiving the schedule 3 criteria have to be present when the partner Visa application was made. According to the law, in order to be processed, in case of a successful onshore application, it is required that the primary applicant should hold a substantive visa at the relevant time when the application is made so that a valid visa application can be lodged by the applicant. On the other hand, it is required that the applicant should satisfy the criteria mentioned in Schedule 3 of the Regulations. In this regard, the requirements of the legislation provide that the applicants should apply for a new substantive visa while the applicant holds a valid substantive visa. The requirements related with the criteria prescribed in Schedule 3 can be waived if, as a result of sub-clause 820.211(2)(d)(ii), Migration Regulations, 1994, the Department has been satisfied that compelling reasons are present for not applying the criteria that has been mentioned in Schedule 3. Earlier, a practice was generally adopted by the Department and also by the Tribunal that the requirements of the criteri a were considered that were present when the relevant application was made. The effect was that the circumstances that were brought to the notice of the Department or the Tribunal as affecting the situation of the applicant after the time of the lodging of the application have to be considered when such an application was evaluated. This is the issue where the significance of the decision given in this case lies. Therefore in Waensila, it was stated by the Full Court of the Federal Court of Australia that a temporal limitation has not been imposed by the legislation regarding the compelling and compassionate grounds which can be relied upon when the waiver of schedule 3 criteria is being considered. Thus, while integrating the provision mentioned in sub-clause 820.211(2)(d), it was the opinion of the Court that the effect of compelling circumstances will continue to be considered while the application is being evaluated and not only when the application was made. The impact of this decision is that the Department and the Tribunal are required to consider the circumstances of the applicant that were present when they're going to assess the application and not merely the circumstances that would present when the application was made. In this case, it was the opinion of Justice Dowsett that a limitation has not been imposed by the legislative requirements regarding the time when it is examined if the criteria has been satisfied. Instead, it was his opinion that it was the discretion of the Minister to exercise the waiver power. The court also stated that the temporal limitation must not be considered in itself as a relevant criterion. In the same way, Justice Griffiths arrived at the conclusion that the waiver power has been provided with a view to alleviate the difficulties faced by that begins and to allow the applicants to have their cases evaluated individually in accordance with their personal circumstances. As no express provision was present which limited the exercise of compelling circumstances at the time of making the application, rejecting the relevant compelling circumstances that were present when the application is being evaluated, will be erroneous. Therefore the implication of this decision will be to expand the grounds that can be relied upon by the applicant while applying for the waiver of schedule 3. At the same time, this decision of the court will also have the impact of increasing the chances of the applicants to remain on shore while the application made by them is being processed. Moreover, there will be a retrospective effect of this decision on the previous cases that were decided by relying on the compelling circumstances present when the application was being decided. The relevant cases still have to be decided on the basis of the facts of each case but the Court will have the power to review a case even after the official period of review of 35 days has elapsed. The Full Court relied on certain principles of statutory interpretation for deciding that sub-clause 820.211(2)(d)(ii) needs to be interpreted as providing that the compelling circumstances on which the waiver of Schedule 3 has been claimed, should be considered without regard to the fact when these circumstances occurred. The effect of this interpretation was that the Department and the AAT had to consider the circumstances when they were deciding the application and not only the circumstances that existed at the time of the making of the application. Sub-clause 820.211(2)(d)(ii) of the Migration Regulations, 1994 provides that schedule 3 criteria can be waived only if it is believed by the Department that there are compelling reasons present for not applying this criteria. The common practice that was adopted by the department in this regard was that only the circumstances that were present when the application was made were considered. As a result, other compelling circumstances that were notified to the Department or the Tribunal having an effect on the situation of the applicants arising after the application was lodged were not considered when the application was assessed. The effect of the approach adopted by the Full Court was that it arrived at the conclusion that a temporal limitation has not been imposed by the legislation regarding the compelling circumstances that can be considered while dealing with the issue of the waiver of schedule 3 criteria. In this way, while integrating the legislative provisions, the Full Court arrived at the conclusion that the circumstances that had arisen after the lodgment of the application can also be considered and not only these circumstances that existed when the application for waiving the schedule 3 criteria has been made. As a result of this statutory interpretation, it is required that the Department and the AAT should consider the circumstances that have arisen while the application was being assessed. Therefore, the Court stated that the legislative requirements have not imposed a limitation regarding the relevant time of the circumstances when the application for the waiver of schedule 3 criteria was bei ng assessed. In the same way, it was also the opinion of the court that discretion has been provided to the Minister regarding the waiver power. In this way, the Full Court adopted the golden rule of statutory interpretation and arrived at the conclusion that the power has been granted for the purpose of alleviating the difficulties faced by the applicants and also to allow the applicants that their cases may be assessed individually, according to their personal circumstances. Bibliography Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32