Australian Immigration Daily News

Gee whiz!!!!

There are times when you look at the decisions that are coming out of the Federal courts, and it can just make your head spin!

Well, that was certainly my reaction when I had a look at Austlii today and came across the decision of the Federal Circuit Court in the case of Kaur v Minister for Immigration & Anor (2016) FCCA (11 March 2016).

Yep, note the date: 11 March 2016.

That’s right, the decision in Kaur was handed down the very same day that the decision of the Full Court was delivered in the case of Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (11 March 2016)!

And guess what! In each case, the visa applicant was taking a directly contrary position concerning the proper interpretation of subclause 820.211(2((d)(ii) of Schedule 2 of the Regulations! 

In Waensila, the applicant contended that the Tribunal had committed jurisdictional error by failing to take into account matters occurring after the date of the application when determining whether discretion not to apply (i.e. to waive) Schedule 3 criteria was being exercised.

Yet in Kaur, the applicant argued that the Tribunal had committed jurisdictional error by taking into account matters occurring after the time of the application.

And to make matters even more confusing, in both cases, the applicant won!

That’s right, wrap your minds around that one for a second!

On the very same day, there are totally irreconcilable judgments coming out of two levels of the Federal court system. One case, Waensila, from the Full Court, holding that the Tribunal had committed jurisdictional error by failing to consider matters occurring after the time of the application when determining whether the power not to apply Schedule 3 criteria should be exercised, and the other, from the Federal Circuit Court (Kaur) holding that the Tribunal had committed jurisdictional error by taking post-application matters into account!

Well, at least out of all of this there is good news, and the certainty that clear guidance is available on the correct interpretation of subclause 820.211(d)(d)(ii) – namely, that it is the decision of the Full Court in Waensila that is controlling.

So, notwithstanding the polar opposite conclusion that was reached by the Federal Circuit Court in Kaur, we know that it will be considered jurisdictional error if the Tribunal declines to consider matters occurring after the date of the application when it determines whether to grant a waiver of the Schedule 3 criteria.

So, even though the Kaur decision rests on an interpretation of subclause 820.211(d)(2)(ii) that we now know the Full Court considers to be incorrect, let’s just take a look at what the case was all about:

The applicant was an Indian national who originally came to Australia as a dependent family member on her husband’s student visa. Soon after their arrival, the relationship broke down. The applicant then began a relationship with another man, and she and her first husband divorced. The applicant married the man with whom she had started the new relationship, and then applied for a partner visa. Since her student visa had long since ceased by the time that she applied for the partner visa, and she had not held a new substantive visa in the meantime, she was dependent on getting a “waiver” of Schedule 3 criteria in order to be able to successfully obtain the partner visa from on-shore.

The difficulty in her case stemmed from the fact that she had apparently relied on claims that her marriage to her second husband gave rise to “cultural issues” and “social stigma” in the Punjab region of India where she apparently came from, and that “honour killings were prevalent” in that region as the basis for there being “compelling reasons” for the Schedule 3 criteria to be waived. It was suggested that the applicant’s health and welfare would be put at risk if she were to be required to return to India to apply for a partner visa.

For reasons that are not clear from the court’s decision, at some point after the application was submitted, statements were prepared by several members of the applicant’s family which indicated that the family’s attitude towards the applicant’s divorce and re-marriage had “softened”.

The Tribunal decided to affirm the refusal of the partner visa application, and, when the case came before the Federal Circuit Court, the applicant made submissions to the effect that the Tribunal had committed jurisdictional error by having regard to circumstances (as reflected in the statements from the applicant’s family members) that had arisen only after the time of the application (namely the softening of the family’s attitudes). It was the applicant’s position before the Court that the Tribunal’s consideration of “compelling circumstances” should have been confined only to circumstances that were extant at the time of the application. In other words, it was the applicant’s submission that the Tribunal should not have considered the statements given by the applicant’s family members in relation to circumstances in existence after the time of the application.

It was the Department’s submission before the Court that it was open for the Tribunal to take into account “post-application” matters in order to support “credibility findings” concerning the attitude of the applicant’s family, and of the family of the applicant’s first husband, toward the applicant’s divorce and re-marriage (apparently to assess the applicant’s claims that her health and welfare would be placed at risk if she were to return to the Punjab region to apply for a partner visa).

Ultimately, in Kaur, the Federal Circuit Court (Judge Wilson) ruled that it had been jurisdictional error for the Tribunal to consider the statements from the applicant’s family concerning “post-application” circumstances. It was the Court’s view that it would “beggar belief” that the Tribunal would have considered the statements only on issues relating to the applicant’s credibility, and that it would not have been “generally” influenced by this material.

Thus, the Court held that the Tribunal had committed jurisdictional error by taking into account material relating to post-application circumstances when it determined whether to grant a waiver of Schedule 3 requirements.

It is a rather amazing, and perhaps even “crazy” coincidence”, that the Kaur and the Waensila decisions happen to have been handed down on the very same day, and that the cases resulted in totally conflicting interpretations of subclause 820.211(2)(d)(ii).

But the “bottom line”, of course, is that because the Federal Court is a “higher” court than the Federal Circuit Court, the determination concerning the proper interpretation and application of subclause 820.211(d)((2)(ii) made by the Full Court in Waensila prevails.

Thus, when it comes to determining whether Schedule 3 criteria should be “waived”, material concerning “compelling circumstances” that came into existence after the time of the application must be considered.

There is a genuine question as to whether the result in Kaur would have been the same if it had been made with knowledge of the Full Court’s ruling in Waensila. My view is that it is very doubtful!

    Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.