Australian Immigration Daily News

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