Australian Immigration Daily News

Have you been keeping the decision of the Full Court in Waensila v Minister for Immigration and Border Protection (2016) FCAFC 32; 241 FCR 121 in mind in your day-to-day practice?

You will recall that this decision is one of the most important and consequential in recent years.

The decision changed the law concerning the “waiver” of Schedule 3 criteria in Partner Visa cases.

Before Waensila, the governing case was Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs, which had stated that when it comes to Schedule 3 “waivers”, only circumstances that exist at the time of the making of the Partner Visa application may be taken into account.

The Full Court held in Waensila  that Boakye-Danquah  was wrongly decided; the Court held that when the decision whether to waive Schedule 3  on the basis of “compelling reasons” is considered under clause 820.211(2)(d)(ii), the Tribunal is not limited to circumstances in existence at the time of the application, but can consider everything up to the time that the waiver decision is made.

The decision in Waensila continues to “reverberate”  and to have important implications for migration practice!

Here’s one example: I was recently called upon to look at an old Tribunal decision in a case where the visa applicant had commenced judicial review proceedings in the Federal Circuit Court without a lawyer.  Those proceedings had been reinstated after it was found that they had been incorrectly dismissed by the Registrar because the applicant had failed to attend a directions hearing. 

This old Tribunal decision recited that the Tribunal had followed the overruled decision in Boakye-Danye and had limited its consideration of whether there were compelling reasons to waive Schedule 3 only to matters in existence at the time of the application. 

So in this situation, the same error that had been found in Waensila literally jumped off the page.

We filed an amended judicial review application for the client, and the Department very quickly agreed that the case should be sent back to the Tribunal for re-consideration, and that the Minister should pay the applicant’s costs of the proceedings in the FCC.

Here’s a second example, from another recent (March 2019) decision of the Full Court, in Minister for Border Protection v Mohammed (2019) FCAFC 49.

What happened in Mohammed was that the Department had refused a Temporary Partner visa (Subclass 820) application, and the Tribunal then affirmed that refusal. Again, this Tribunal decision was affected by a Waensila-type error.   

The Department then refused the Permanent Partner visa application (Subclass 801) that had been made at the same time as the Temporary Partner visa application on the basis that the applicant did not hold, and had not held, a Temporary Partner visa, which is a criterion for the grant of the Permanent visa. 

This refusal was then affirmed by the Tribunal.

The applicant then commenced judicial review proceedings in the Federal Circuit Court. 

At that point, the Department conceded that the Tribunal’s decision to affirm the refusal of the Temporary Partner visa had been incorrect. Consent Orders were agreed to which resulted in the Tribunal’s decision affirming the refusal of the Temporary visa being sent back to the Tribunal for re-consideration.

And , significantly, the Full Court held that since the original Tribunal decision affirming the refusal of the Temporary Partner visa had been invalid, the Tribunal had committed error by deciding the Permanent Partner visa application before the Temporary Partner visa application had been resolved.

So, the important concept that comes out of the Mohammed case is that it is important to be mindful of the sequence in which refusals of Partner visa applications occur: if an earlier refusal of a Temporary Partner visa is invalid for any reason, then a later refusal of the Permanent Partner visa, on the basis that the applicant does not hold a Temporary Partner visa, is also invalid.

If you would like to read a more detailed analysis of the Mohammed  case, it is available on my subscription site, The Migration Messenger, just by clicking here (of course you will have to subscribe, which you should, reading the posts on Migration Messenger is good for your health and well-being, better than Weetabix!!!!)