Describe about the Australian Migration Law and Practice for Immigration and Border Protection.
Waensila v Minister for Immigration and Border Protection is a landmark judgment with respect to the granting or refusal of granting of a partner visa in Australia. It has overruled the previous judgments and revolutionized the ways in which partner visas are assessed in Australia (Walsh & Haag, 2015).
Clause 820.211(2)(d)(ii) of the Migration Regulations 1994 lays down that that if an applicant of a partner visa is the not the holder of a substantive visa, then he needs to satisfy Criteria 3001, 3003 and 3004 under Schedule 3 of the Regulations at the time of application of the partner visa . However, these criteria can be dispensed with if the Minister is satisfied that there exists compelling reasons (Burn., 2013).
In the present case, the appellant did not actually fulfill the above mentioned criteria. The appellant contended that he should be granted a partner visa on the ground that certain compelling reasons existed such as:
iii. his marital relationship with his wife would get affected if had to return to Thailand;
The contention of the appellant was rejected by all the courts on the ground that the compelling reasons should have existed at the time when the visa application was submitted by the appellant. The lower courts relied on the heading of Clause 820.21 which contains the words “at the time of application” (Starr, 2016).
The Federal Court of Australia, through its judgment on March 11, 2016 reversed the decision of the lower FCCA on appeal. According to Federal Court,the exercise of power of the Minister to dispense with the fulfilment of the requirement as laid down under Schedule 3 cannot be limited to the circumstances which existed at the time of application of visa. The Federal Court relied on Berenguel v Minister for Immigration and Citizenship (2010) in which the Court, with respect to a similarly worded provision, held that the heading of a provision is not necessarily connected with its terms. Thus, the heading cannot confine the exercise of Minister’s power to the compelling reasons which existed in at the time of applying for the visa. The Federal Court observed that the waiver power of the minister is not a criterion in itself. It is a power which has to be exercised to determine whether the criterion under Schedule 3 is to be dispensed with or not. Therefore, the minister may exercise its power even after the application of the visa has been submitted (Castles et al., 2013).
Section 65 of the Migration Act, 1958 is also relevant for the purpose of construction of the provisions under the Migration Regulations 1994 (Collins, 2014).Under Section 65, the Minister has the power either to grant or refuse the visa. According to the section, the relevant time at which a minister may determine whether a visa application fulfilled all the relevant criteria or notis the time of making a decision with respect to the granting or refusal of grating of a visa and not the time at which the visa application is applied. Section 55 of the Migration Act also lays down that the Minister must consider all the relevant information before making a decision whether to grant or refuse to grant a visa (Simmons et al., 2013).
The decision of the Federal Court is an important and a landmark judgment which seeks to combat the hurdles faced in applying for a partner visa in Australia. If this decision would not have been passed by the Federal Court of Australia, then the applicant would have to return to his own country and apply for a visa application. It would have caused a lot of detriment to the relation of the applicant with his wife. This judgment has undoubtedly opened the floodgates for the claims of partner visas in Australia. As per the reasons of the judgment,a partner visa applicant can be saved from complying with the requirements of Schedule 3,if he can show that there exists compelling reasons which requires the attention of the Minister for granting the visa, irrespective of the fact that the reasons did not exist at the time of application of the visa. This judgment has been delivered in the interest of justice and to reduce the hardship which a person faces while applying for a partner visa. This view of the Court is significant for the unlawful non-citizens who wish to regularise their status in Australia and become lawful citizens afterwards. This judgment has surely impacted the lives partner visa applicants in Australia and has changed the way in which partner visas are assessed in Australia. The Tribunal and the Department will have to change their approach of reviewing partner visa applications and they need to make sure that justice is being done to every single applicant who applies for a partner visa in Australia (Starr, 2016).
The Federal Court has utilised the golden rule of interpretation of statute in this case.The golden rule states that if the meaning of words used in a statute is not in accordance with the intention of the legislature and if it leads to some repugnance or absurdity, then the statute’s language may be modified or varied so as to avoid such repugnancy or absurdity (Carney, 2015). The golden rule is usually utilised by judges to interpret a statute in such a way so as to give effect to the intention of the legislature (Dharmananda & Lane, 2016).
In this case, according to the federal Court, the purpose of the legislature was to give greater flexibility to the Minister in determining whether compelling reasons or circumstances exist or not while granting or refusing to grant a partner visa to an applicant. The intention of the legislature was also to avoid the hardship which may be faced by a partner visa applicant. This purpose or intention of the legislature would be defeated if the statute is interpreted in a way so as to limit the circumstances in which such discretion of the Minister is to be exercised. The Federal Court has laid down emphasis on the point that the heading of a provision cannot confine or limit the circumstances in which the Minister has to determine whether or not to grant or refuse to grant a visa. To interpret the statute that the minister would consider the compelling circumstances only at the time when the visa application is submitted would give a narrow meaning to discretionary power of the minister and would eventually defeat the purpose of the statute. This would cause inconvenience or absurdity and to remove such inconvenience or absurdity, the judges of the Federal Court has applied the golden rule of interpretation of the statute. Thus, in this case, the judiciary has given effect to the intention of the legislature and has avoided to give ordinary meaning to the words of the statute as such meaning would have not served the purpose for which the legislature was enacted (Starr, 2016).
References:
Burn, J. M. (2013). Reconsideration of visas intended to provide protection and support to people who have experienced human trafficking, slavery and slavery-like practices.
Carney, G. (2015). Comparative approaches to statutory interpretation in civil law and common law jurisdictions. Statute Law Review, 36(1), 46-58.
Castles, S., Hugo, G., & Vasta, E. (2013). Rethinking migration and diversity in Australia: introduction. Journal of Intercultural Studies, 34(2), 115-121.
Collins, G. (2014). President’s page: Migration amendments. Precedent (Sydney, NSW), (120), 3.
Dharmananda, J., & Lane, P. (2016). Teaching Statutory Interpretation in Australia: What’s Next?. Statute Law Review, hmw030.
Simmons, F., O’Brien, B., David, F., & Beacroft, L. (2013). Human trafficking and slavery offenders in Australia. Trends and issues in crime and criminal justice, (464), 1.
Starr, D. (2016). Federal court judgments. Ethos: Official Publication of the Law Society of the Australian Capital Territory, (240), 54.
Walsh, R., & Haag, S. (2015). Immigration: Breaking up is a hard to-do: Dual regulation of migration lawyers set to end. LSJ: Law Society of NSW Journal, 2(5), 74.
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