Australian Immigration Daily News

Here’s another interesting question that was recently decided by the Federal Circuit Court on Schedule 3 waivers:

Is a future desire on the part of the applicant and sponsor to have a child together a “relevant consideration” that must be taken into account by the Administrative Appeals Tribunal when it determines whether or not to grant a Schedule 3 waiver?

The case in which this question was presented was Lan v Minister for Immigration & Anor 2018) FCCA 1170 (2 May 2018). 

At the hearing before the Federal Circuit Court, the barrister who was representing the applicant before the Federal Circuit Court argued that a future intention to have children stated prior to the time of a decision concerning the grant of a Schedule 3 waiver” was both a relevant consideration and a compelling reason for the grant of a waiver.

This argument was predicated in part on the Full Court’s decision in Waensila, where it was held that any matter arising prior to the time of decision on a waiver request must be taken into account.  (As readers will be aware, prior to Waensila, the prevailing principle was that only matters that were in existence at the time of the lodgment of the application could be taken into account.

In Lan, Judge Egan of the Federal Circuit Court held that the future intentions of the applicant and the sponsor are not matters that the Tribunal is obligated to consider.

Rather, it was Judge Egan’s view that under Waensila, the matters that must be considered are limited to “those facts which (are) existing and established facts as at the time of the making of the decision”.

Therefore, this decision confirms that the “compelling reasons” that are relied upon in support of a waiver request must “actually exist” at the time of the decision.  In Judge Egan’s words, the Waensila decision does not go so far as to hold that:

“facts or matters the subject of future possible scenarios, whether reasonably based or matters or mere conjecture, ought to be relevant considerations to be taken into account when the Minister determine(s) whether compelling reasons exist...or not”.

So, the message here is that applicants cannot rely on the possibility that something might happen in the future, or the desire that that thing happen, as the basis for a request of a waiver of Schedule 3.

The waiver application must be predicated on the “cold, hard facts” of matters that are already in existence at the time of the decision.

The law is malleable but can only be stretched so far!