Australian Immigration Law For Partner Visa Under Subclass 820

Background of Waensila v Minister for Immigration and Border Protection case

Describe about the Australian Immigration Law for Law and Justice.

Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 is a landmark judgment concerning immigration laws in Australia in relation to application and grant of partner visa under subclass 820. The said judgment over ruled the decisions of the lower courts regarding the concerned matter and created a new manner in which partner visa are reviewed in Australia.

The appellant, who was a citizen of Thailand, was married to an Australian citizen since September 5, 2010
Based on his marital relationship, he applied for temporary and permanent partner visas under subclass 820 and 801 on 10 September 2010.
The appellant had a visitor’s visa when he arrived in Australia; however, the same was expired while applying for the partner visa.
The Migration officer refused to grant the appellant with partner visa based on the ground that the appellant failed to satisfy the criteria mentioned in Clause 820.211(2)(d)(ii) of the Migration Regulations 1994.
The appellant filed a suit against the decision of the immigration officer however, the decision was upheld by the Tribunal
Thus, the appellant filed for a judicial review against the order of the Tribunal in the Federal Circuit Court of Australia which also upheld the decision of the Tribunal[1].
Thus, the appellant filed an appeal in the Federal Court of Australia.

The whole case stands on the interpretation of Clause 820.211(2)(d)(ii) of the Migration Regulations 1994[2]. Thus it is important to note what the said clause states. Clause 820.211(2)(d)(ii) of the Migration Regulations 1994 states that the applicant of partner visa should comply with Schedule 3 criteria 3001, 3003 and 3004 if he fails to hold any substantive visa at the time of application, unless he can convince the ministry about the existence of certain compelling reasons at the time of application for non-compliance. Thus, the said section gives the Minister discretionary powers to determine the existence of compelling situations and accordingly grant or refuse to grant partner visa.

In the given case, the appellant failed to comply with Clause 820.211(2)(d)(ii) of the Migration Regulations 1994 and the condition mentioned in it however, he provided a list of compelling reasons which precluded him from the said compliance. The said compelling reasons stated by the appellant were as follows:-

He would be victimized and abused if he returned to Thailand as a Muslim citizen of Thailand
His relationship with his wife would be adversely affected if he returned to Thailand
He feared the reunion between him and if wife would never be possible if he returned to Thailand
His wife was suffering from many diseases and required intensive care
The appellant was responsible for his wife financially[3]

All the lower courts rejected the claim filed by the appellant based on the ground that according to Clause 820.211(2)(d)(ii) of the Migration Regulations 1994, compelling reasons are required prevail at time of the application of partner visa and in case of the appellant they arose at a later stage[4]. Thus, the wording of the said clause “at the time of the application” is relied on while providing the judgment.

Decision of the Federal Court

The Federal Court reversed the decision of the lower Courts in the said case making this case a landmark judgment on March 11, 2016. The Federal Court in its judgment stated that the discretionary power given to the Ministry under Clause 820.211(2)(d)(ii) of the Migration Regulations 1994 cannot be limited and restricted to compelling situations existing at the time of visa application. The Federal Court while deciding the said case relied on Berenguel v Minister for Immigration and Citizenship where the Court stated that the heading of a section does not always mean it’s connected or related to the terms mentioned in the section[5]. Therefore, in the present case, the discretionary power of the Minister cannot be limited based on the heading of the clause. The waiver which is given to the Ministry under Clause 820.211(2)(d)(ii) of the Migration Regulations 1994 is to be exercised whether the conditions under Schedule 3 is to be considered or not, thus, the said power can be exercised even after the application of partner visa is submitted[6].

Facts and Arguments presented in the case

Another important section which the Federal Court referred to reach to the desired conclusion in the said case is Section 65 of the Migration Act 1958. In the said section, the ministry is conferred the power to either grant or refuse visa in Australia. According to the said section, the appropriate time period to determine whether a visa application fulfills every condition required under the immigrations laws in Australia is at the time the said decision is made and not at the time of the visa application[7]. Additionally, while deciding the said case law, section 55 of the Migration Act 1958 was also considered which states that the Minister is required to consider all the important information before using its discretionary powers of granting or rejecting a visa application.

The decision of the Federal Court in the said decision brought about a revelation in the manner how partner visa applications were handled in Australia. The said decision has created new ground rules for applicant of partner visa making it simpler. After the said decision, application for partner visa cannot be refused by the Minister if the applicants can successful shows that certain compelling reasons preclude him from complying with conditions of the Schedule 3 irrespective of the fact that these conditions did not exist at the time of application. Thus, the said judgment has been delivered with the intention to reduce the hardship which partner visa applicants face due to the discretionary powers given to the Ministry while considering visa applications. Thus, the said decision makes it necessary for the Ministry along with the Immigration Department to change the way in which Clause 820.211(2)(d)(ii) of the Migration Regulations 1994 was interpreted.

While deciding the Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 case law, the Federal Court of Australia has relied on the golden rule of interpretation[8]. The Golden Rule of Interpretation of Statute allows a judge while deciding a case to deviate from the regular meaning of a term or a word to avoid or clear an absurd or an illogical result. Thus, while using the golden rule of interpretation, the judge is allowed to modify the meaning of an absurd or an illogical word mentioned in a statute to remove the repugnance which the word is getting in the statute and to make it match the intention of the legislation. Thus, when the intention of the legislation is diverted due to the presence of a word I the statute, golden rule of interpretation is used to modify the meaning of the said word[9].

In the said case, the Federal Court in Australia stated that the intention behind Clause 820.211(2)(d)(ii) of the Migration Regulations 1994 was to provide greater discretionary powers to the Ministry while determining whether compelling situations exist while granting or rejecting partner visa applications. The Federal Courts stated that all legislations are created to protect the citizens from hardship and the said purpose and intention of the Legislation will not be served if the said clause was interpreted in a manner which limits the time in which the said discretionary powers can be used by the Ministry. Thus, if the Ministry is only permitted to consider the existence of compelling situations at the time of visa application, the said interpretation leads to limiting the discretionary powers of the Ministry which defects the intention of the Legislation. Thus, to avoid the absurdity which was created by interpreting the term “at the time of application” in a narrow manner, the Federal Court in Australia relied on the golden rule of interpretation to promote the actual intention of the Legislation and remove the absurdity the said wordings were creating in the Clause 820.211(2)(d)(ii) of the Migration Regulations 1994[10].

Reference List

Berenguel V Minister For Immigration And Citizenship [2010] HCA 8 (at 1) https://eresources.hcourt.gov.au/showCase/2010/HCA/8

MIGRATION REGULATIONS 1994 – SCHEDULE 2 (at 1) https://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/sch2.html

Sanson, Michelle, Statutory Interpretation (Oxford University Press, 2012)

Section 65 Of Australian Migration Act 1958 (at 1) https://www.lawnotes.in/Section_65_of_Australian_Migration_Act_1958

Waensila v Minister for Immigration & Anor [2015] FCCA 2276

Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32

Williams, Fiona. “Migration and care: Themes, concepts and challenges.”Social Policy and Society 9.03 (2010): 385-396.

Williams, Glanville Llewelyn and A. T. H Smith, Glanville Williams (Thomson Reuters)

[1] Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32

[2] MIGRATION REGULATIONS 1994 – SCHEDULE 2 (at 1) <https://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/sch2.html>

[3] Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32

[4] Waensila v Minister for Immigration & Anor [2015] FCCA 2276

[5] Berenguel V Minister For Immigration And Citizenship [2010] HCA 8 (at 1) <https://eresources.hcourt.gov.au/showCase/2010/HCA/8>

[6] Williams, Fiona. “Migration and care: Themes, concepts and challenges.”Social Policy and Society 9.03 (2010): 385-396

[7] Section 65 Of Australian Migration Act 1958 (at 1) <https://www.lawnotes.in/Section_65_of_Australian_Migration_Act_1958>

[8] Sanson, Michelle, Statutory Interpretation (Oxford University Press, 2012)

[9] Williams, Glanville Llewelyn and A. T. H Smith, Glanville Williams (Thomson Reuters)

[10] Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32

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Background of Waensila v Minister for Immigration and Border Protection case

Describe about the Australian Immigration Law for Law and Justice.

The appellant, who was a citizen of Thailand, was married to an Australian citizen since September 5, 2010
Based on his marital relationship, he applied for temporary and permanent partner visas under subclass 820 and 801 on 10 September 2010.
The appellant had a visitor’s visa when he arrived in Australia; however, the same was expired while applying for the partner visa.
The Migration officer refused to grant the appellant with partner visa based on the ground that the appellant failed to satisfy the criteria mentioned in Clause 820.211(2)(d)(ii) of the Migration Regulations 1994.
The appellant filed a suit against the decision of the immigration officer however, the decision was upheld by the Tribunal
Thus, the appellant filed for a judicial review against the order of the Tribunal in the Federal Circuit Court of Australia which also upheld the decision of the Tribunal[1].
Thus, the appellant filed an appeal in the Federal Court of Australia.

He would be victimized and abused if he returned to Thailand as a Muslim citizen of Thailand
His relationship with his wife would be adversely affected if he returned to Thailand
He feared the reunion between him and if wife would never be possible if he returned to Thailand
His wife was suffering from many diseases and required intensive care
The appellant was responsible for his wife financially[3]