Discuss the Report for Waensila v Minister for Immigration and Border Protection.
The Department of Immigration and Border Protection or DBIP guidelines required that the applicant who is applying for subclass 820 visa for his/her partner who is an unlawful resident of the country to fulfil the criteria of “at the time of lodgement of the application”. This means that some the decision of visa was dependent on some compelling circumstances and if those circumstances were not met then the visa was refused. This schedule 3 policy and waivers have changed due to this case.
Before discussing the practical implication of the case it is essential to discuss the case. In this case the applicant is a Thailand citizen who came to Australia with a visitor visa in November of 2007. Later he applied for a protection visa and he lost the case in High count in October 2009. After almost one year in September 2010 he applied for a partner visa while he was still in Australia. But, the court ruled against the visa application as it did not fulfil the criteria of Schedule 3. The criteria was that he needed to apply for the partner visa within 28 days of holding a substantive visa and that 28 days period was over two years earlier in 2008. He showed many circumstances that would satisfy the criteria of being a compelling circumstance. This included matters stated below.
He was afraid of persecution if he had to go to Thailand as he was Muslim.
He feared he would not be able to meet his wife later if he went to Thailand.
He also gave issues such as number of health concerns of his wife, the impact the separation will have on his relationship with his wife.
He feared about the financial condition of his wife as she did not have a job and she was financially dependent on him.
Even after giving all these circumstances he was denied the visa application at the time due the Schedule 3 clause.
The Waensila case has potential ground breaking implications in case of immigration law. Before this case the law was the primary applicant has to be a holder of substantive visa at the time of lodging of the application[1]. In case this criterion was not met then the Schedule 3 came into effect which states that the applicant has to hold a substantive visa while applying for a substantive visa. This was only waived in case there was a compelling issue. What practically happened was the court and the tribunal considered any issues of application lodgement that came into effect at the time of review was a situation which was after the time of the lodgement of the application. So, naturally visas were not permitted through this way[2].
On 11st March, 2016 DIBP has updated the regulation regarding the time of the compelling circumstances that might have arisen. The change was that the circumstances can arise at any point of time till the date of the decision (T & M, 2014). As an immediate impact of this decision some cases regarding this has gone to the applicants. One example of this is the James Tan Immigration Consultants succeeded in a case on 5th April. James Tan client did not fulfil the previous criteria for getting a visa but after the Waensila verdict it was recommended by the count that he has met all the criteria for subclass visa[3].
The decision of the court now makes it possible for the applicants to rely on circumstances which might have occurred after the application was made. That means that the number of circumstances that can be taken into account has now increased greatly. This is bound to help the applicants as they will get more options regarding proving that their circumstances are indeed compelling[4].
The change in the law also helps applicants who want to stay in Australia with their partners and families during the period when their applications are assessed by the court. That means the immigrants who have partners in Australia can easily stay in the country for a longer period of time with their families than they were able to stay before the case.
One confusing this that happened on the day the Waensila verdict was made that while the full court made the decision in favour of the applicant by stating that the tribunal had made a mistake by not taking into account circumstances that have occurred after the application, on the very same day Federal Circuit court judged that the tribunal had made a mistake by taking into account circumstances that have occurred after the date of application. This happened in the case of Kaur versus the minister[5]. In the Kaur case the applicant won the decision by stating that the court has ruled against her despite the circumstances occurring after the date of application. The cases are opposite to each other and the courts practically ruled two opposite verdicts. But as the Waensila case verdict was made in the full court so that decision will have more impact in the future and it is likely if the Federal Circuit court knew about the full court decision then it would have given the verdict as per the full court[6].
While this decision has positive implications for candidates who had genuine issues regard the stringent visa laws, it has some negative implications on another front. Visa is a very important aspect of the immigration laws and a stringent law regarding this means that while some people may suffer due to this but it ensured that getting Australian visa was not easy for unlawful parties. After the change in the law, an unlawful person who has relationship with an Australian citizen can easily regularize their visa status. Before Waensila the only way they could have gotten the visa was by proving in the court about compelling reason. Now all that has changed and this could lead to some negative impact in the future.
The effect of this decision by the full court is not limited to the Waensila case or the cases that might arise later on. This also greatly affects cases which have been ruled against the applicants on the ground of the time when the circumstances have arisen. Those cases will have to consider on the basis of their merit of the circumstances but it is highly likely that applicants whom did not get visa previously have a greater chance of succeeding now. So, now the court is liable to review cases which have elapsed the 35 day review period mandated by the immigration law[7].
There are primarily three principles or rules of statutory interpretation. They are- Literal interpretation or plain meaning rule, Golden rule which is also known as the British rule and the last one is Mischief rule[8]. In case of the plain meaning rule the statutes are interrelated by using ordinary language of the statutes. So, the statutes are read word by word and the ordinary meaning of that is taken unless the meaning comes out to be absurd or cruel. In case of Golden rule the judge interprets statutory in a more in depth way rather than just taking the literal meaning[9]. This is done in order to avoid absurd result by taking plain meaning of the statutory. The third one is Mischief rule, in this rule the court takes into account more than literal meaning and in depth meaning. The court considers which parts of the law are defective and it acts accordingly. It basically determines the defect or mischief in the statutory that is leading to some scenarios which are not properly covered by the law[10].
In the Waensila case the principle that is most applicable is the principle of Mischief rule. The law regarding immigration and visa approval was different before this case. The applicants had to apply for the visa and circumstances that have occurred after the date of application were not considered. This led to many disputes and people had to face genuine difficulties due to this law. On the other hand this law ensured that very few immigrants got visa which in turn meant that immigration situation was more controlled in Australia than many other countries. The court in this case applied the Mischief rule in giving the judgement of this case. The chief justices decided that the date of application in these types of cases cause dire consequences for the applicants and their families living in Australia. So, they interpreted what the law was not covering and they rectified it by stating that the date of application constraint will be revoked.
Boulus, P, ‘Policy Agendas and Immigration in Australia 1996-2012.’ [2013] the borders of punishment
Brennan, F, ‘Human Rights and the National Interest: The Case Study of Asylum, Migration, and National Border Protection’ [2016] HeinOnline
Nethery, A; Rafferty-Brown, B, ‘Exporting detention: Australia-funded immigration detention in Indonesia’ [2013] Journal of Refugee Studies
Faunce, T; McKenna, M, ‘REGULATION OF AUSTRALIAN MEDICAL PROFESSIONALS AND NATIONAL SECURITY: LESSONS FROM THREE CASE STUDIES’ [2014] NCBI
Nethery; Holman, ‘Secrecy and human rights abuse in Australia’s offshore immigration detention centres’ [2016] The International Journal of Human Rights
Mares, S; Zwi, K, ‘Sadness and fear: The experiences of children and families in remote Australian immigration detention’ [2015] Journal of paediatrics and child health
Gluck, ‘What 30 Years of Chevron Teach Us About the Rest of Statutory Interpretation’ [2014] Columbia Law Review
Nourse, V, ‘A Decision Theory of Statutory Interpretation: Legislative History by the Rules’ [2012] Yale Law Journal
Shobe, J, ‘Intertemporal Statutory Interpretation and the Evolution of Legislative Drafting’ [2014] Columbia Law Review
Menjívar, C, ‘Immigration law beyond borders: Externalizing and internalizing border controls in an era of securitization’ [2014] Annual Review of Law and Social Science
Posner, EA, ‘The Institutional Structure of Immigration Law’ [2013] The University of Chicago Law Review
[1] See Brennan, human rights and the national interst
[2] See ‘Secrecy and human rights abuse in Australia’s offshore immigration detention centres’
[3] (Nethery & Holman, 2016).
[4] See the reference of (Mares & Zwi, 2015)
[5] Check Immigration law beyond borders: Externalizing and internalizing border controls in an era of securitization’
[6] check (Boulus & Dowding, 2013)
[7] The reference of Posner.
[8] Check statuary interpretation
[9] Please check the reference of Nourse, 2012.
[10] Check ‘Intertemporal Statutory Interpretation and the Evolution of Legislative Drafting’
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