Discuss about the Australian Immigration Law for Immigration and Border Protection.
1. The Federal Court of Australia gave or rather delivered a groundbreaking decision for the matter of Waensila v Minister[1] for Immigration and Border Protection (2016). The matter is concerned with the Schedule 3 criteria for the application of partner visa. According to the legislation, as laid down under the migration rules, the primary applicant is expected to hold a substantive visa while making a valid application for the same. Even if they do not hold a substantive visa, they are expected to satisfy the criteria of Schedule 3 as mentioned under the regulations. The regulations further explain that an applicant can apply for a substantive visa only when they hold a valid substantive visa.
The criterion as required under Schedule 3 can get excused only by the effect of subclause 820.211(2) (d) (ii)[2] of the Migration Regulations 1994. The authorized department gets satisfied reasons that there must be some undeniable reasons that prevented the applicant from holding a valid visa during the time of application for a substantive visa. Before the decision came in the common application of the Tribunal and the Department considered the requirement of the criterion to be in continuation at some stage in the time when such pertinent application is made. So, any state of affairs brought to the Tribunal or the Department’s awareness which is distressing the situation of the applicant during or after the application of the visa will not be taken into contemplation while evaluating the submission made.
The main significance of the Waensila decision consists of the situation that occurs during the time of application and what considerations are granted or not granted while evaluating the application. The full Court of Federal Court of Australia considered that the regulations do not impose the temporary restriction of the grounds created under compulsion with the waiver of criteria as mentioned under Schedule 3. So, while the interpretation of the subclause 820.211(2) (d), the court came to a decision that the compelling circumstances will be looked when the assessment of the application is made and not during the time when such application is made. With the effect of the assessment, the concerned department, as well as the AAT, should reflect on the state of affairs of the applicant as already obtainable conditions when the appraisal of the application is made.
The opinion held by Justice Dowsett is that the requirements by the legislative regulations do not impose the limitation with relation to the time when the examination is made to check whether the applicant can satisfy the criteria. Rather he held a different view which explains that the waiver power can be applied or exercised at the prudence of the minister. The chronological drawback must not be treated in such a way that it becomes a relevant criterion for the application of the substantive visa. The other Justice in this matter, Justice Griffiths found that the waiver power is meant to lessen the hardships faced by the applicant. The waiver power enables the applicant to have the case individually assessed and the conclusions to be drawn after considering their personal grounds that created the difficulties and then assess the application in such manner. The legislative[3] regulations do not possess or express any provision which limits the existence of such situations that appear to be a compelling situation during the time of application of such substantive visa. As the expression is missing in the legislation, then rejection of any such compelling circumstances during the time of assessment of the document and coming to the decision will be considered as erroneous. The main importance of the decision brought some easement to the applicant as before the decision passed for the case; the applicant faced lots of difficulties for the application for the substantive visa without the existence of the valid visa. It is quite obvious for some applicant not to have the valid visa during the time of the application of the substantive visa which may include some serious circumstances that compelled them to make delay in the application for the visa which does not mean that they will be considered as making illegal stays except for some exceptional cases[4]. The introduction of the waiver rule has proved to be advantageous for such situations where the assessment of the visa will be considered based on the situations of the applicant reducing the harassment.
The decision of the matter expanded the applicant’s reliability on the grounds of the personal assessment of situations and also when applying for the Schedule 3 waiver. The decision even increases the projection of the applicants so that they can remain on-shore, while the processing of the application is carried out. With an addition of the advantage of the recent decision was made in the case, it is likely to have a retrospective effect on the previous cases similar to the situation as occurred in this matter. The previous case of the same matter situation can have the reliance on the compelling circumstances that occurred to them which genuinely prevented them from having a valid substantive visa during the time of application of the substantive visa. The matter even holds the importance as it opened a lot of aspects and opportunities for the existing cases of relevant matter. The court came to a conclusion that the matter required having the determination on the facts that occurred and what can be considered as compelling situations. The court even has the power to examine and review the cases consisting of a similar component of compelling situations. Usually, the rights of duration to check the matter for such situations are thirty- five days but, in this matter, Justice Dowsett, Justice Griffiths, and Justice Robertson came to the conclusion that the matter[5] can be still considered for a revision even if the period passed over or elapsed.
The main importance of the decision for the matter is lies as it put emphasis on the section 55 and 65 of the Migration act 1994. Before the decision of the matter the requirement of the section were misinterpreted. It is clearly mentioned in the section that the minister is supposed to consider the information while assessing the procedure until he comes to a decision. In subsection(1), it is even mentioned that the minister is not required to delay in the decision making as the applicant told to provide further information but to consider them while making the decisions.
Section 65 of the act explains that the application to be granted after satisfying every criteria in the migration Regulations 1994. Upon such cases it is found out that in certain cases the applicant might face some obligations for not fulfilling the criterion as mentioned in the regulations which may compel the minister to refuse the application and consider that to be a substantive visa. hence, concerning many situations which raised in different matter, the involvement of section 13(2)(d) of the Interpretation Act 1901 (Cth), was a necessity which gave scope for other matters to get revised even if that passed beyond 35 days.
2. The Tribunal and the Department interpreted the rule of sub clause 8320.211 (2) (d) (ii) the way it was written in the Migration Act, 1958. They focused more on the findings of the intention of the legislature that is, to waive schedule 3 of the Act compelling situations should be present at the time of making the application[6]. Hence, it could be said that the Tribunal and the Department followed the literal rule of statutory interpretation[7].
The Full Court overturned the decision and they analyzed the statute in a different way unlike how it was interpreted by the Tribunal. According to the Full Court, this section should not be interpreted in its literal sense as it is coupled with the discretionary power of the Minister. The Minister has the discretion to conduct an analysis as to when compelling situations exist or not and hence, it should not be limited to at the time of making an application. If compelling situations are present even at the time of or after making the application, the Minister can consider them as compelling situation enough to grant them visa. The analysis and the findings of the Federal Court showed signs of reliance on the golden rule of statutory interpretation[8]. This rule allows Judges to deviate from the normal meaning of the Act so that it avoids absurdity and ambiguity in the Act. The Judges rely on this statutory interpretation rule as this gives them the liberty of deviating from what is written in the statute. Similarly, in this case also Judges Dowsett, Robertson and Griffiths construed the meaning more than its limited meaning and gave a more relaxed meaning of the statute. Particularly the issue in this case was related to the satisfaction of the Minister whether or not compelling or compassionate situations are present in any given case. The Minister was restricted in considering only those situations as compelling which existed at the time of making the application. The Federal Court removed the absurdity by passing a judgment that stated that if compelling situations exists even after making an application of partner visa that should be regarded as compelling situation.
Bains v Minister for Immigration and Citizenship [2012] FCA 649; (2012) 205 FCR 217
Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438 ;( 2002) 116 FCR 557
Interpretation Act 1901 (Cth)
Legislation Act 2003 (Cth)
Migration Regulations 1994
Waensila v Minister for Immigration & Anor [2015] FCCA2276NSD 1088 of 2015
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