Schedule 3 Case Everyone Needs to Know!!!

The Full Court of the Federal Court has issued a decision which is likely to transform or even revolutionise the way that applications for partner visas are assessed in Australia!!

How often does that happen? Not very often at all!!

So it is exciting, dramatic and important when it does!!!

It all goes to prove that you can come across something that is truly significant and essential when looking at the Federal court decisions on Austlii! Yep, reading through Austlii may seem at times to be a dry and dusty exercise more suitable for Dickensian London than an unseasonably warm weekend day in Sydney.

But lo and behold, here is a decision that will certainly force the Department and the Tribunal to change the way that they review partner visa applications!

And it is one that has the potential to impact, for the better, the lives of many, many visa applicants!

The case, which as indicated in my “news flash” on 12 March, was Waensila v Minister for Immigration and Border Protection (2016) FCAFC 32 (11 March 2016).

Ok, why the excitement and the hyperbole?

As RMAs will be well aware, the criteria for a Temporary Partner visa (subclass 820) application that is made when the applicant is “onshore” require that the applicant must hold some kind of substantive visa at the time of the application, or they must satisfy the criteria of Schedule 3 of the Regulations (primarily, that the applicant has applied for a new substantive visa within 28 days of the expiration of their previous substantive visa). Subclause 820.211(2)(d)(ii) provides that the Schedule 3 criteria do not have to be applied if the “Minister” (Department) is satisfied that “there are compelling reasons for not applying the criteria”.

The Department and the Tribunal have consistently held that whatever the “compelling cricumstances” are that are relied upon for an application that Schedule 3 be dispensed with, they must have been in existence at the time that the application for the partner visa was made.

And the Department and the Tribunal have also consistently taken the position that any circumstances that have come into being after the time that the partner visa application was lodged simply cannot be taken into account.

So what is revolutionary and transformative about the Waensila decision?

It is that the Full Court unanimously held that there is no “temporal” limitation on when the compelling circumstances relied on for a Schedule 3 “waiver” must have existed.

The Court held that the proper interpretation of Subclause 820.211(2)(d)(ii) is that compelling circumstances can be considered without regard to when they occurred.

Therefore, the Department and the Tribunal are not confined to considering compelling circumstances that existed at the time that the application was made. Circumstances that have arisen after the application was made can and must be taken into account.

Briefly, what were the facts in the Waensila case? The applicant was a citizen of Thailand who originally arrived in Australia on a visitor visa in November 2007. He unsuccessfully applied for a protection visa, and his case in relation to that application went all the way to the High Court, where he lost. The High Court case was determined against him in October 2009. Then, in September 2010, when he did not hold any form of substantive visa, he applied for a partner visa while still onshore in Australia.

The Department refused the applicant's partner visa application on the basis that he did not satisfy Schedule 3. And indeed he could not. By the time he made his application for the partner visa, the 28 day period for applying for a new substantive visa had elapsed several years earlier (in 2008).

The applicant sought to rely on a number of circumstances which he claimed constituted compelling reasons for the Schedule 3 criteria not to be applied in his case. These included matters such as:

* he feared persecution if he were to be forced to Thailand to lodge his application from offshore due to the fact that he was Muslim;

* he feared that he would never be reunited with his wife if he were to return to Thailand;

* he was concerned that a long separation from his wife would affect his relationship;

* his wife had a number of health conditions and she was reliant on the applicant for continuing care;

* his wife was not working and was financially dependent on him.

Both the Department and the Tribunal took the view that since the matters that were relied on by the applicant were not present at the time of his application for a partner visa, they could not be considered as “compelling reasons” for not applying the Schedule 3 criteria.

Although the applicant's application for judicial review was not successful before the Federal Circuit Court, the Full Court held that both the Tribunal and the Federal Circuit Court had not correctly interpreted subclause 820.211(2)(d)(ii).

The Full Court held that the Tribunal had committed jurisdictional error by construing subclause 820.211(2)(d)(ii) to mean that the only matters that could be considered as compelling reasons for not applying Schedule 3 had to be in existence at the time of the lodging of the partner visa application.

Exactly why did the Full Court conclude that “the Tribunal had “got it wrong?”

Well, the three judges of the panel (Dowsett, Robertson and Griffiths) all gave slightly differing explanations (with the most detail being provided by Judges Robertson and Griffiths, who indicated that they were in “substantial agreement” with each other.

It was Judge Robertson's view that since the purpose of the Minister's having discretion not to apply (or to “waive”) Schedule 3 was to give the Minister “greater flexibility if and when compelling circumstances arise and, for example, to avoid hardship to the visa applicant”, it would be inconsistent with that purpose to adopt an interpretation that would limit the circumstances that could be taken into account “to circumstances existing at some past point”.

It was Judge Dowsett's view that the circumstances which can be relied upon to justify the exercise the discretion not to apply Schedule 3 should not be limited in the absence of “statutory or regulatory requirements”. And neither subclause 820.211(2)(d)(ii) include any requirements which restrict the matters which may be considered as “compelling” only to those which are in existence at the time that the partner visa application is lodged.

The reasons given by Judge Griffiths were as follows:

* The power to dispense with, or “to waive”, Schedule 3 requirements, is not itself a “criterion” of Part 820 to Schedule 2 of the Regulations. Therefore, in His Honour's view, the heading that appears at clause 820.21 that reads: “Criteria to be satisfied at time of application” does not have the effect of confining the decision-maker's consideration of whether there are compelling circumstances only to matters which are in existence at the time of the application;

* The “waiver power” in subclause 8320.211(2)(d)(ii) is expressed in terms that the Minister “is satisfied that there are compelling reasons for not applying” Schedule 3, and that this language implies that the waiver power would be exercised at the “time of decision” as to whether to grant a visa, and thus the matters to be taken into account should extend to matters in existence not just at the time of application, but also at the time of decision;

* Since the “waiver power” was intended to alleviate hardship, it was necessary that there be clear words in the text of the legislation and regulations confining the matters that could be considered – and since no such language exists, it is not appropriate to interpret the regulations as limiting the reasons that can be considered to those that exist at the time of application;

* The Explanatory Statement to the amendments that introduced clause 820.211(2(d)(ii) do not contain anything which says that the circumstances which are relied on as the basis for seeking a “waiver” of Schedule 3 must exist at the time of the application.

It is nearly impossible to overstate just how significant the Full Court's decision in Waensila is.

Partner visas are one of the very few pathways by which unlawful non-citizens can “regularise” their status in Australia, become lawful non-citizens and thus ultimately find a path to permanent residency and citizenship. Before this decision, the only alternatives available were for the applicant either to satisfy Schedule 3 (unlikely or impossible in most circumstances) or to rely on circumstances in existence at the time of application.

The decision now makes it possible for applicants to rely on circumstances which have come into existence since the time of application for the parter visa, and very likely greatly enlarges the matters that can be relied on.

The decision thus also greatly increases the prospects for applicants who wish to remain onshore with their partners and their families while there partner visa applications are being assessed.

One final note: a comment was submitted concerning my original post about this case asking whether it would be worth referring “old cases” where it has been held that matters arising after the time of the application cannot be considered to be compelling reasons for waiving Schedule 3 to a lawyer, even if more than 35 days has passed since those cases were decided by the Tribunal (In other words, the formal period for seeking judicial review has elapsed).

My answer to that question is a resounding and unequivocal “Yes!!!!!!!”. The Federal courts do have power to extend the 35 day period for seeking judicial review in circumstances where it is in the interest of justice to do so. It is my own view as a lawyer that there is a very reasonable prospect that applicants who have not been able to gain a Schedule 3 waiver because the Tribunal refused to consider matters arising after the partner visa application was made would be able to persuade the Federal courts to extend the time for seeking judicial review. Of course each case would need to be assessed on its individual merits.

But, should RMAs who are not themselves lawyers and who have clients who have been refused Schedule 3 waivers consider seeking legal advice concerning the implications of Waensila?

You betcha!!!! (Thanks Sarah Palin!!)

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837

Comments

Robert Steain Monday, 14 March 2016

Common sense does sometimes prevail though I wouldn't expect for too long. Guess we must expect a change in legislation that will sidestep this ruling.

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Owen Harris Monday, 14 March 2016

This is indeed a great step forward. It does NOT (IMHO) solve the real sting in the tail and that is the policy interpreting what "compelling" means. The last round of changes made this definition so narrow it meant you had to be dead or dying or your sponsor had to be dead or dying before you had half a chance (some slight exaggeration of course). I am not convinced that this opens the door to those who are (as set out in the EM) in long term relationships or will struggle financially etc. But time will tell.

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Michael Arch Tuesday, 15 March 2016

Thanks for your comment Robert! I am not so sure that there will necessarily be a legislative change to respond to the ruling in Waensilia. Only time will tell, of course. But it seems clear from the way that the Full Court interpreted the legislation and from the text of the Explanatory Memorandum that there was not an underlying intention when 820.211(2)(d(ii) was introduced/amended in 1996 that the availability of the "waiver" for Schedule 3 was intended to be limited only to circumstances arising before the application was filed. And as the judges who heard this case pointed out, if the waiver provision is intended to be "ameliorative" and to provide flexibility in cases where compelling circumstances arise, there if no sound reason to limit the compelling circumstances that may be considered to those in existence at the time of the application. Most telling I think and as also pointed out in the opinions is that there simply is no language in 820.211(2)(d(ii) that would limit the circumstances to those that were present at the time of the application. Again we'll have to see if their is any proposed legislative response from the department, but at the moment I believe that this decision is unqualified good news for visa applicants with Schedule 3 issues.

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Owen Harris Tuesday, 15 March 2016

I would expect a legislative change (its what DIBP does whenever they lose a big case) - they even make it retrospective (offshore processing for example) - and they can simply continue to ratchet down what qualifies as compelling in policy. Anyone who thinks that DIBP ever concedes much doesn't understand the game (not that I do - I'm still trying to work out what their rules are).

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Raul Senise Tuesday, 15 March 2016

There has been much publicity over this case, however, I don't see why it is considered so important, as it will have no bearing on most genuine applicants.

How is this going to change advice given to clients? "You do not currently meet schedule 3 requirements, however, if during the processing of your application “compelling circumstances” arise you may become eligible."

Will applicants now contrive their situation to make “compelling circumstances” arise after lodgement or will they just hope for misfortune to strike?

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Michael Arch Tuesday, 15 March 2016

Thanks for your comment Raul! My own view is that there are likely many many circumstances where a strong case can be made that there are compelling circumstances which are not contrived. To give just one example: I have seen Schedule 3 cases where the AAT has refused to take into account that a sponsor is pregnant due to the fact that the pregnancy began post-application. Or assume that a pregnancy was in progress at the time of application but the Australian citizen child had not yet been born, and the AAT has refused ot take that circumstance into consideration. I think that these are fact patterns - and there are likely many others (sponsor's health has dramatically deteriorated post-application) where this decision may enable an application to prevail where it might have failed if the only considerations to be taken into account were "time of application" circumstances. I continue to believe that this decision offers hope to many many applicants seeking Partner Visas who are confronting Schedule 3 issues and who are genuinely faced with compelling issues which would warrant the grant of a "waiver".

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Raul Senise Tuesday, 15 March 2016

I do not dispute that there may be cases in the pipeline that this particular ruling may benefit, although I imagine they would be few.

My point is that from a practical point of view, it has no bearing on those who are yet to apply for a visa and do not meet schedule 3 requirements, unless they are planning on fabricating “compelling circumstances” post lodgement.

I am just surprised at the amount of attention this ruling has received, as I have seen it reported across multiple Immigration platforms.

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Michael Arch Tuesday, 15 March 2016

There may very easily be a lot of people who cannot show compelling circumstances at the time of application, but who are in a position where they have to at least try to get Schedule 3 waived (e.g. the applicant has overstayed a previous visa and has become an unlawful non-citizen). As the FC itself pointed out in Waensila, there may be a long period of time between the date that the application is lodged and the time of decision as to whether the discretion not to apply Schedule 3 should be exercised. It is entirely possible that genuine compelling circumstances might arise during this interval, that would not be remotely "contrived". And if those circumstances do occur, why shouldn't Schedule 3 be waived? The "waiver" enables flexibility on "humanitarian" or "compassionate" grounds - something that would be desirable across the board in the administration of migration law. With respect, I do not agree that the significance of this case is being "overblown" at all. I suspect it could affect hundreds of cases and it will require a very different approach to administration of the law than has been the existing practice. In my view, that is something that is truly significant, and I think it's a good thing that word of this decision is being widely broadcast.

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N Thursday, 18 August 2016

Pregnancy case approach outcome (michaels comments sbove)
http://immigrationsolutions.com.au/case/partner-visa-schedule-3-policy-changes/

2/8 Tribunal hearing....no issue with genuine relationship even at DIBP (original app 11/2013). Bridging visa, 5yr relationshop, married 3. Policy change negative impact on us as arguing 'compelling reasons' Our officer was not interested in any compassionate, humanitarian grounds (the political and dictatorship issues, disregarded DFAT as for visitors i.e. us if we ever got $ to go. security questioned, financial hardship info) put forward etc. This included not able afford going offshore and re-apply (if one could get work visa then actually get any job) wage was much much less i.e. 1 Egyptian pound approx. .11 U.S. cents. You do the maths on maybe 300epounds a month to pay towards living expenses + flights + accom + re-application expenses + continue to support parent/siblings (all expenses converted to U.S.) and me stuck here paying mortgage + car, cards, loans, hecs, kid on 1 salary going into minus BUT NO not good enough (they can get loan or borrow from friends, family or bank?*#!@)! So 2 weeks to go and I just read ruling may be discretionary or not applicable to cases lodged before 1/7/2014 (is that correct)??
Solutions (not offshore and yes waiting for options). Suggesyions?

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Olga Friday, 17 June 2016

In my case I ceased to hold a substantive visa because of circumstances out of mycontrol;

The case officer says lodging partner visa was within the 28 day time frame was in our control: I originally applied for a 457 self sponsor application which was processed well outside the 2 months guidelines and within this application, the business component was approved on 28 October, 2015. As a self sponsored 457 the employee of this business was to be myself and the case officers decision on the employee needs of this business show a complete lack of understanding of the type of business they originally approved. Further the departments new directive and interpretation of this visa class changed on 15 December, 2015. This left us with a decision to make in a very short space of time, and we chose to withdraw the application rather than receive a failed application. The application was withdrawn on 16 December 2015 and we lodged the partner visa on 13/01/2016. My calculation has that at 28 days. Further there is no requirement to lodge prior to the last day of the substantive visa ending, so the departments processing time by it's nature forces us to fall into different criteria of lodging further applications.
If the department had given this direction prior to August 21, we would have applied for the partner visa while myself remained on a substantive visa, thus the criteria required to apply for partner visa would have been met. These were factors out of our control,as the department moved the goalposts retrospectively.
The case officer for the partner visa did not assess the remaining criteria and did not consider whether I was a de facto partner as we had failed to fulfil the first requirement of the application.
And our relationship certificate clearly demonstrates we are in a genuine and ongoing relationship.

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Audan Monday, 29 May 2017

Hi,
How has your case ended up?
Granted ? Or still waiting?
Similar situation here

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Olga Tuesday, 30 May 2017

Granted

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Audan Tuesday, 30 May 2017

Great!
How long was it from when you lodged the partner visa till you got it granted in the end?
My compelling reasons are it was beyond my control and I've got a baby about to be born in oz who's fully dependant on me being here .

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O Wednesday, 31 May 2017

A year, the longer it takes since you apply the better.

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Richard Flick Tuesday, 30 August 2016

I have to tell you that a Relationship Certificate DOES NOT "clearly demonstrate .... a genuine and ongoing relationship" in exactly the same way that a Marriage Certificate also DOES NOT.

These are legal documents which make a statement of relationship, but this is not satisfying ALL the requirements of demonstrating genuine and continuing relationship. The evidence must show a commitment to a shared life together, and generally recognition in the community of the relationship.

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Sam Saturday, 06 August 2016

Hi Being law student in University, I was wondering what principles of statutory interpretations were used in this case?

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Lee Trethowan Saturday, 25 February 2017

Hello to everyone here.

Has anyone been granted the Schedule 3 waiver?? If so or if not can you let me know.
We have our Tribunal coming up on the 20th March 2017 and I would appreciate any new information available??

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Indestructable Monday, 01 May 2017

Hi there
No not granted and still fighting.
Lodged dept 2013 (decision 12/2014), lodged AAT (decision August 2016), lodged FCC jurisdictional error (conceded), back to AAT.
The problem is the inconsistent manner in with dept policy is being applied by officers (AND there is no guidance as to what constitutes compelling, compassionate in relation to evidence). You need a qualified migration lawyer to prepare (migration agent ok but make sure they are successful). If you go in with too little paperwork or member already has made decision hearing won't make any difference. They did not even take into account our (and immediate family) financial (I would go into bankruptcy) and partners country political situation if my partner was forced to leave. Our perception compelling = partner is terminally ill - there is no compassion and it's extremely frustrating and tearing our family apart after almost 4 years of this battle (no funds, no holidays). Normal citizens are not even asked to demonstrate their relationship with this scrutiny and look how many of them turn out!

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manpreet Sunday, 17 December 2017

Hi bro
i have also same problem can i have ur lawyer name and adress
plz i wana apply in federal court.
Thanks

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sunny Wednesday, 15 March 2017

Hi all, i am bit confused . My 885 visa was refused due to late submission of ielts result . My mrt was refused in july 2014. Then applied for federal circuit court case and it was refused in sep 2016 and by that time the law had been changed. Now, i am in full federal . Should i fight for ot or move forward and look for another way to get the pr.
Pls reply

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