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Schedule 3 Waivers: Scope and Reach of the Decision in Waensila

What is the scope of the Full Court’s decision in the Waensila case?

Remember? Waensila  was the case where the Full Court overturned the Federal Court’s previous decision in the case of Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs that held that the only matters which can be taken into consideration when the Department/Tribunal are deciding whether to “waive” Schedule 3  criteria are matters that were in existence at or before the time of the application.  

In Waensila,  the Full Court held that regulation 820.211(2)(d) (ii), which permits the “waiver” of Schedule 3 where there are compelling reasons for not applying the Schedule 3  criteria, is not itself a “time of application” criterion. Accordingly, the Full Court decided in Waensila that when it considers whether to exercise the discretion to waive Schedule 3,  the Tribunal is not limited only to circumstances in existence at the time of the visa application.  Rather, under Waensila the Tribunal is at liberty to consider any matter that is in existence at the time that the decision whether to waive Schedule 3  is made.

Therefore, under Waensila, matters that arise both before and after the lodgment of the visa application may be taken into account – in fact, any matter that bears on whether compelling reasons exist not to apply Schedule 3 may be considered, without regard to when that matter has come into existence.

Just so long as the matter has “arisen” before the decision is made whether to grant a Schedule 3  waiver.

So here’s a little riddle for you to consider.

Suppose you have a case that came before the Tribunal before  the Waensila case was decided.

In other words, the case came before the Tribunal before  11 March 2016, and before Boaakye-Danquah was found not to be good law anymore?

In such a case, is it jurisdictional error for the Tribunal to have applied Boakye-Danquah,  and to have declared that : “the question of whether there are compelling reasons for not applying the Schedule 3 criteria must be considered in relation to circumstances existing at the time of the application”?

How would you answer this little riddle? Yes, no, maybe, all of the above?

An answer to the riddle can be found if you look on Austlii: Kaur v Minister for Immigration and Anor (2017) FCCA 964 (27 April 2017).

And drum roll: the answer is that even if the case came before the Tribunal before Waensila was decided, Waensila nonetheless applies.

So if you have a Schedule 3  case that came before the Tribunal “pre-Waensila”  it was still jurisdictional error if the Tribunal held in the case that it could only consider circumstances in existence  at the time of the application. (You might remember my advice way back when in March 2016 that such cases could be ripe for applications for judicial review – guess what: it is still not too late to think about challenging such decisions (at least theoretically!).

Here is another little riddle, and a variation on the theme: Suppose the Tribunal has stated in its decision  that Boake-Danquah is the governing law, and that it can only consider circumstances in existence at the time of the visa application, but then, the Tribunal proceeds to consider matters that arose after the application when it determines whether to grant a waiver of Schedule 3

In other words, what happens if the Tribunal erroneously says it is limited to considering circumstances in existence at the time of the application, but then, actually and as a matter of fact, proceeds to consider everything – circumstances both before and after the application.

In that circumstance, if it is jurisdictional error for the Tribunal to say that the governing law is defined by Baokye-Danquah, will you be able to get the Tribuna;’s decision quashed??  The answer, or at leas the answer given by Judge Barnes in Kaur was: no, since there was no denial of procedural fairness or practical injustice (since both pre-and post-application matters were taken into account) then the Court may very well withhold a remedy.

One last riddle: suppose that the Tribunal has made an error in stating the applicable law about what matters may be considered in relation to whether to grant a Schedule 3 waiver, but there is another reason that supports the Tribunal’s decision to affirm the refusal of a visa.

For example, what if the applicant has run afoul of PIC 4020, and there are no grounds available to waive PIC 4020?

Answer: if there are separate and independent grounds on which the Tribunal properly affirmed a refusal, you are out of luck. The courts probably won’t grant your client the remedy of quashing the Tribunal decision.

Have you been pondering any other riddles that have been keeping you awake at night?

If so, contact the “answer a riddle” Department: This email address is being protected from spambots. You need JavaScript enabled to view it.   

(Migration law questions only; questions about the meaning of life or other matters must be referred elsewhere!)

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Guest Tuesday, 16 January 2018
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