Immigration and Border Protection Interpretation Adopted by the Court

Question: Discuss about the Immigration and Border Protection forInterpretation Adopted by the Court. Answer: 1. The decision given in this case has very significant implications, particularly when it comes to partner visa. In this case, the unanimous decision of the Full Court was that no temporal limitation is present regarding when the persuasive conditions which have been relied upon for the Schedule 3 waiver should be present. In this context, the court stated that the proper interpretation of sub-clause 820.211(2)(d)(ii) will be that the court can consider the compelling circumstances without taking into account, when these circumstances have taken place. The implication is that the Department as well as Tribunal is not restricted to considering the persuasive circumstances that were present when the application was made. They can consider the circumstances that were arisen after the making of the application and should take these circumstances, into account. The opinion of the Court in this case was since the purpose behind the discretion of the Minister not to apply a Schedule 3 waiv er (or in other words, to waive) Schedule 3, has been provided to the Minister for the purpose of greater flexibility in case of convincing circumstances and, for instance, with a view to evade the hardships faced by the applicants, it will be not be consistent with such a purpose if an interpretation is adopted that the circumstances that can be considered are only the circumstances that were present at some time in the past. The opinion of Dowsett J in this case was that the circumstances that can be banked on for justifying the use of discretion of not applying Schedule 3 must not be restricted, in view of the nonexistence of statutory requirements. Similarly, sub-clause 820.211(2)(d)(ii) does not contain any requirement which places a restriction on the matter is that can be considered as compelling as being only the matter is that were present at the time when the application for partner visa was made. The reasoning of Griffith J was that the authority to dispense with or to waive the requirements prescribed by Schedule 3, is not in itself a criterion of Part 822 Schedule 2. Consequently, in his opinion, the title appearing on laws 820.21 which is the Criteria to be satisfied at time of application cannot be said is having the effect of restraining the consideration of the decision-maker of whether the convincing circumstances were present regarding the matters that were in existence when the application was made. The waiver power that has been mentioned in sub-clause 8320.211(2)(d)(ii) have been mentioned in terms that the Minister is satisfied that compelling reasons are present or not applying Schedule 3 and therefore, it can be implied that the waiver power can be used at the time of the decision regarding the grant of visa and therefore the matters that can be taken into consideration should extend not only to the matters that existed when the application was made but also the matters existing at the time of decision. As the intention behind the introduction of the waiver power was to lessen difficulties, it was important that clear words should be used in the law and principles, restricting the matters that can be considered and as no such language is present, it will not be appropriate to interpret the regulations as restricting the reasons that can be taken into account only the circumstances that existed when the application was made. There is nothing in the Explanatory Statement to the amendments introducing Clause 820.211(2)(d)(ii) that indicates that the circumstances that have been relied upon while seeking a waiver of Schedule 3 should be present when the application is made. In this way, this is where the significance of this decision lies. It was unanimously held by the Full Court of the Federal Court of Australia that these provisions do not result in implementing a temporal limitation of compelling and compassionate grounds relied upon when the waiver of Schedule 3 criteria is being considered. Therefore, while integrating the provision mentioned in sub-clause 820.211(2)(d), it was decided by the court that the effect of these compelling and compassionate circumstances will be carried through while the application is being evaluated, and not merely when the application was made. In this way, the effect of this decision is that the Department and the Tribunal under an obligation to consider the circumstances of the applicant that would present when they evaluate the application. Under these circumstances, it can be said that the effect of this decision is to expand the grounds that can be relied upon by the applicants when they are applying for the waiver of Schedule 3. At the same time, another impact of this decision is that it increases the chances for the applicant to remain on shore during the processing of the application. Moreover, it can also be said that this decision will also have a retrospective effect regarding the previous cases by relying on the compelling circumstances that were present at the time of the decision and not merely the circumstances that were present when the application was made. Therefore, despite its current policy, the Department as well as the Courts and Tribunals are required to follow this decision (till the time when the decision has been subsequently overruled by the High Court). The effect is that while deciding the issue of waiving the criteria mentioned in Schedule 3, a much wider scope of circumstances is present that have to be considered by the decision-makers while evaluating the applications. In this way, the decision has significant implications, particularly in case of partner visa. 2. In this case, the Full Court relied upon the principles of statutory interpretation to arrive at the conclusion that the provisions of sub-clause 820.211(2)(d)(ii) have to be interpreted in such a way that the compelling circumstances related with the waiver of schedule 3 can be considered without regard to the fact that when these circumstances have taken place. For this purpose, the court applied the golden rule of statutory interpretation and therefore, while integrating these statutory provisions, it was held by the court that the effect of the compelling circumstances on the basis of which, the waiver of Schedule 3 has been claimed in the application, will be carried through the period during which the application is being evaluated and not only the time when the application was made. As a result of this interpretation, it is required that the Department and the Tribunal are required to consider the circumstances of the applicant when they are evaluating the application and n ot merely the circumstances that were present when the application was made. In this regard, the Migration Regulations, 1994 provide in sub-clause 820.211(2)(d)(ii) that the requirement of criteria described in Schedule 3 can be waived only if the Department believes that compelling reasons exist for not applying the criteria. However, according to the common practice adopted by the Department and also by the Tribunal in the past, only the requirement of the criteria was considered that existed when the relevant application was made. The effect was that any circumstances that were brought to the notice of the Department or the Tribunal as affecting the situation of the applicants after the application has been lodged were not considered while assessing the application. However the effect of the approach regarding statutory interpretation that was adopted by the Full Court in this case was that the court came to the conclusion that the legislation has not imposed a temporal limitation regarding compelling circumstances while considering the waiver of the criteria mentioned in Schedule 3. Therefore, while interpreting this particular legislative provision, it was decided by the court that the impact of compelling circumstances can be considered throughout the period when the application is being evaluated and not only the circumstances that were present when the application for the waiver of Schedule 3 criteria was made. The effect of this approach of statutory interpretation adopted by the court was that the Department as well as the Tribunal is required to evaluate the circumstances that are present when the application is being assessed. It was also stated by the court that a limitation was not imposed by the legislative requirement regarding the relevant time, when it was examined in the criteria was satisfied. On the other hand, it was held that the waiver power can be used by the Minister at his discretion. Adopting the golden rule of statutory interpretation, the court stated that the waiver power has been granted with a view to alleviate hardship and to allow the applicants to have their cases evaluated individually, in accordance with their personal circumstances. As there was no express provision present, which limited the existence of compelling circumstances only been the application was made, rejecting the relevant compelling circumstances that arise when the application was assessed wil l be erroneous. Reference Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32