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News Flash! Hugely Important Case on Schedule 3!!!
The Full Court of the Federal Court issued a decision on Friday 11 March which holds that the Department's discretion not to apply Schedule 3 criteria in partner visas is not limited to consideration only of "compelling and compassionate circumstances" which were in existence at the time of the application.
Under this ruling, the Department (and the Tribunal) are required to take into account circumstances which arose after the application was made but before the application was determined.
This decision obviously has immense significance for people who do not hold substantive visas at the time that they are making onshore applications for partner visas, and for RMAs who are advising them.
The decision Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (11 March 2016) can be accessed by clicking on the link.
Watch this space Monday morning, 14 March 2016 for details of the decision!!
Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Comments
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Wednesday, 16 March 2016The full Federal Court decision on 11 March is subject to DIBP appeal under HIGH COURT RULES 2004 - RULE 41.02 within 28 days.
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Wednesday, 16 March 2016
Perhaps the Department will appeal - who knows? I don't think the appeal will be successful, assuming the High Court even decides to take the case.
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Tuesday, 17 May 2016
Hi Michael, great news. What about cases that have gone through both the DIBP & the Tribunal, and were taken to the Minister for Ministerial Intervention?
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Tuesday, 17 May 2016
Hi Coris, Yes this is truly an important decision! The options in each case would need to be assessed individually. My personal view is that if the circumstances warrant, the best option would be to seek an extension of time and file an application for judicial review to the Federal Circuit Court, especially if there are strong circumstances that arose after the time of the of the application and if the Tribunal specifically declined to have regard to post-application circumstances.
Immigration blog
Hi Michael, thank you, this is such a good reading and great lesson of statutory interpretation. I am just wondering how old cases could be subject to a judicial review relying on this case law (eg.could you appeal a case more than 35 days after the original decision - is it worth referring such clients to a lawyer)?