Australian Immigration Daily News

How useful is the Full Court’s decision in the case of Waensila v Minister for Immigration and Border Protection (2016) FCAFC 32?

Remember? That’s the decision that was handed down by the Full Court a bit more than 8 months ago, on 11 March 2016.

And when that decision was delivered, it seemed like it had the potential to turn at least a part of migration practice “on its head”.  The part where an applicant is seeking a Partner visa (Subclass 820) while onshore, but no longer holds a substantive visa (and has not held a substantive visa for more than 28 days after her or his last substantive visa ceased to be in force), and thus cannot satisfy the criteria of Schedule 3 of the Migration Regulations.

Before the Waensila decision, it had been held (in the case of Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs) that a so called “waiver” of the Schedule 3 criteria could only be obtained under subregulation 820.211(2)(d)(ii) on the basis of “compelling reasons” that were in existence at the time that the application for the Partner visa was made. Under Baakye-Danquah. Circumstances that came into existence after the Partner visa application was lodged, but before a decision was made as to whether to grant a “waiver” of Schedule 3 could not be considered.

Waensila effectively reversed and overturned the decision in Boakye-Danquah.

In Waensila, the Full Court held that circumstances arising after the application was lodged, and at any time before a decision was made concerning whether to waive Schedule 3, can be taken into account in support of a request that Schedule 3 be waived.

So, getting back to the original question: How useful has the Waensila decision proven to be as a basis for “getting around” Schedule 3 problems (or more precisely, in getting Schedule 3  waived?)

To try to find an answer to this question I went back and looked at the Tribunal decisions since Waensila was decided back in March.  My search through Austlii revealed that there have only been 2 decisions from the Tribunal since Waensila  reported where the Tribunal has remitted Department decisions to refuse Partner visas.

The more interesting of these two cases was 1605671 (Migration) 2016 AATA 4133 (15 July 2016).

In that case, the Department originally refused the visa application on the basis that the applicant did not satisfy the Schedule 3 criteria and that there were no compelling reasons not to apply Schedule 3.  The Tribunal then made a decision (before Waensila was handed down) to affirm the Department’s refusal on the basis that the reasons on which the applicant sought to rely for a waiver of Schedule 3 did not exist at the time that the application was made. 

The applicant then sought judicial review in the Federal Circuit Court.  And after the Waensila case was decided, the matter was remitted back to the Tribunal with the consent of the Minister. 

The Tribunal then found, due to circumstances that had arisen after the application, there were compelling reasons not to apply Schedule 3.  

These included that, by the time the case came back before the Tribunal, the parties had been in a long-standing relationship; that the applicant’s sponsor was pregnant with their first child; that the sponsor had taken maternity leave, and was financially dependent on the sponsor; and that it would be very difficult for the sponsor to relocate back to India with the applicant.

The outcome in this case is certainly interesting: it is my understanding that there were some pre-Waensila decisions where it was held that the pregnancy of a sponsor that had occurred after the visa application was lodged would not be considered to be a compelling reason for waiving Schedule 3,  because such the pregnancy was a “post-application” circumstance.

There has also recently been an interesting decision involving Waensila in the Federal Circuit Court, Raza Khan v Minister for Immigration & Anor (2016) FCCA 1905 (25 July 2016).

This case shows us that a Waensila-type error by the Tribunal, involving failure to consider post-application circumstances, may not, by itself, to be enough to overcome a decision by the Tribunal to affirm the refusal of a Partner visa application.

In Raza Khan, it was clear enough that there had been a Waensila error.  The applicant was unable to satisfy the Schedule 3 criteria,  but the Tribunal declined to consider any circumstances arising post-application as a possible ground for waiving Schedule 3.

However, there was another issue in Raza Khan that effectively “sunk the case”. 

This issue was that the Tribunal found that the applicant and his sponsor had not been in a genuine spousal relationship; that their relationship was “contrived”; that the applicant and his sponsor had not lived together; that the financial aspects  of the relationship were not consistent with a spousal relationship.  In a word, the Tribunal’s consideration of the various factors under regulation 1.15A led the Tribunal to conclude that the relationship was not a genuine one.

The fact that there had been a Waensila-type error by the Tribunal in its consideration of whether to grant a waiver of Schedule 3 was not enough to salvage this case.  The Court found that it was sufficient reason for the Tribunal to affirm the refusal that the spousal relationship was not a genuine one.

And since the Waensila-type error by the Tribunal was not one that was sufficient to change the outcome of the case, the Federal Circuit Court declined to “quash” the Tribunal’s decision.

It is still “early days” since the Waensila decision, and it will be interesting to see how both the Tribunal and the Courts apply it in the future. 

For example, what if there were compelling circumstances at the time of the application, but those circumstances no longer exist at the time that a decision is being considered as to whether to grant a waiver? 

It’s my own view that Waensila would limit the relevant considerations to those in existence at the time the decision is made whether to grant the "waiver".

But only time will tell what happens!

Do you have any interesting experiences in dealing with Schedule 3 and Waensila to share?