Australian Immigration Daily News

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.

Another day, another decision that illustrates the obstacles to getting a “waiver” of Schedule 3 criteria!

The decision, Awad v Minister for Immigration & Anor (2017) FCCA 452, was handed down by Judge Driver on 10 May 2017.

This was the story: the applicant was a Lebanese national who originally arrived in Australia in February 2010 on a student visa. That visa ceased on 15 March 20102. He then applied for a further student visa, with that application also being made on 15 March 2012, but that second student visa application was refused. He then applied for a partner visa in July 2013, but in December 2014, the Department deemed that that application was “invalid” (why it took the Department approximately a year and a half to figure out that this application was “invalid” is not explained in the Court’s decision, but “whatever”.  Finally, the applicant re-applied for a partner visa in December 2014. It was that application which was the subject of the proceedings before the Federal Circuit Court.

On 5 May 2017, the Assistant Minister for Immigration and Border Protection announced the introduction of a new “temporary sponsored parent visa”.

The announcement follows a commitment made by the Turnbull Government during last year’s election campaign to introduce this new parent visa.

The availability of this parent visa will be dependent on the passage of the Migration Amendment (Family Violence and Other Measures) Bill 2016 through the Parliament.  That Bill is currently before the Senate.  If the Bill is passed in Parliament’s Winter Sittings, it is expected that the new visa will be available in late 2017.

Does the Department have the authority to confiscate mobile phones from people who are being held in immigration detention?

This question is prompted by a change in the government’s policies that were announced in late May 2016, and which began to be implemented in February of this year. 

Prior to this policy change, a “two-tiered” approach to the possession and use of mobile phones by persons in detention had been in place since 2010.  Under that two-tiered approach,  persons  who were being held in detention because they were “illegal maritime arrivals” were not allowed to have or use mobile phones, but otherwise, persons who were in detention because their visa had been cancelled on character grounds were allowed to have and use mobiles.

The legal framework of the Migration Act surrounding the cancellation of the visas of persons who are owed protection obligations by Australia and who therefore cannot be returned to their countries of origin consistently with Australia’s international treaty obligations under the Refugees Convention  is a complicated, convoluted, messed up mess!

That this is so was illustrated by a case that was handed down yesterday, 3 May 2017, by Acting Chief Justice North of the Federal Court of Australia in the case of DMH16 v Minister for Immigration and Border Protection (2017) FCA 448.

This was the background of the case: