Law Act of Interpretation

Question: 1 . Explain in plain English the practical implications of the decision of the Federal Court in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (copy attached). 2. What principles of statutory interpretations (if any) were utilised by the Federal Court in this case? Answer: 1. Introduction: This question is related with the practical implications of the decision that was delivered by the federal court in Waensila v Minister for Immigration and Border Protection.[1] In this decision, the court has overturned the interpretation of schedule 3 of the Department of Immigration and Border Patrol as the court was of the opinion that the interpretation adopted by the department was overly strict and at the same time, it was not supported by the law. In this case, the appellant was the citizen of Thailand and his wife was Australian. When you make an application for the partner visa, the applicant did not have a substantive visa. In the same way, the applicant did not satisfy criterion 3001 according to which, it was required that the application for partner visa should have been lodged within 28 days of the expiring of his visitor visa.[2] The result was that the applicant tried to prove that compelling reasons were present for waiving the requirements prescribed by schedule 3, however he was unsuccessful. In this regard, it was argued by the Department that the minister was only confined to considering the compelling reasons that were present when the application was made by the applicant. In view of this construction, any compelling reasons cannot be considered that were related with the events or the circumstances that took place after the applicant had made the application for a partner visa. Therefore while the applicant mentioned is fear of persecution to lodge a fresh application if he were to return to Thailand because he was a Thai muslin citizen. The applicant also expressed his view that he may never be able to reunite with his wife if he was made to return to Thailand. In this regard the applicant mentioned his wife's illness and the need for continuous medical attention as well as the fact that the wife was dependent on the applicant financially. But in this regard, the Department came to the conclusion that these circumstances did not exist when the partner visa application was made by the applicant and as a result, they cannot be considered as the compelling reasons for waiving the schedule 3 criteria. However the court did not agree with the interpretation of these regulations by the Department. First of all, the court stated that there was nothing in the words of the relevant sections which confined the consideration of the decision-makers to only the compelling reasons that were in existence when the application was made by the applicant.[3] Secondly, the court stated that it was obvious that the purpose behind the waiver power was to provide flexibility while dealing with the cases where the compelling reasons for not putting some of the applicants to the hardship of the requirement of leaving Australia. On the other hand, the court said that the strict interpretation adopted by the Department would seem to be contrary to the purpose of introducing this waiver power by the Legislature. The result was that the Court sent the case back for a re-hearing to the Administrative Appeals Tribunal. It was seen that for some time, the applicants who were under similar circumstances, as t he applicant in the present case (unlawful noncitizens were applying for a partner visa) were generally refused the waiver of schedule 3 criteria and as a result, they had to go overseas for making the application. However in this case, all the three judges were of the opinion that there were no reasons due to which the circumstances can be limited, whether they favored the applicants are not, to the position at a time before the Minister considers that the exercise of such discretion is significant. In view of the fact that it has been nearly entirely left to the immigration Minister or a delegate to determine if sufficient compelling reasons are present for granting a waiver of the schedule 3 criteria, a strong message has been sent by the judges in this case that it is important that the decision should be exercised by keeping within the bounds of law. It can also be said that this decision is much more sympathetic towards the partner visa applicants as compared to the current po licy interpretation of the Department. Moreover, the decision will have a strong impact on how the schedule 3 is applied to the other applications. Therefore it can be said that the effect of this decision is to expand the grounds that can be relied upon by the applicants while they are applying for the waiver of schedule 3 criteria. At the same time, it also appears that as a result of this decision given by the Full Court, the chances for such applicants will increase to remain unsure while there application for visa is being evaluated. Moreover, the decision may also have a retrospective effect on the cases that have been decided previously by relying on the compelling circumstances that were present at the time of the decision. Although it is necessary that the relevant cases should be decided on the basis of the facts of each case but a power is present on part of the court to review the cases even after the lapse of the official review period of 35 days. Conclusion: In view of this decision, it is required that despite its current policy, the Department, as well as the Tribunals and the Courts will be under an obligation to follow this decision until and unless the cases overruled by the High Court. The effect of this position will be that while deciding the issue if the schedule 3 criteria can be waived in case of a certain applicants, the decision-makers will be under an obligation to consider a much wider scope of circumstances. 2. Introduction: While arriving at its decision, the Full Court had relied upon certain principles of statutory interpretation when it stated that the effect of subclause 820.211(2)(d)(ii) is that the compelling reasons on the basis of which, the waiver of schedule 3 criteria has been claimed, need to be considered that were present when the circumstances arose. The effect of this interpretation was that despite its current policy, it has become obligatory for the Department and Tribunal to consider the circumstances that were in existence when the application was being considered and not only the compelling circumstances that existed when the applicant had made the application. It has been mentioned in this sub-clause of the Migration Regulations,[4] that the schedule 3 criteria can be waived only if it is the opinion of the Department that there are compelling reasons present for not applying the criteria. However generally the practice adopted by the department was to consider only the circumstanc es that were in existence when the application was lodged. However, the effect of this practice was that the compelling circumstances that came into existence after the applicant had already lodged the application and have been raised before the Department or the Tribunal as the circumstances have a significant impact on the situation of the applicant, were not considered when such an application was assessed. But the effect of the approach adopted by the Full Court when it stated that a temporal limitation has not been imposed by the law regarding the compelling circumstances that can be taken into account while dealing with the matter of schedule 3 criteria waiver.[5] The effect of this interpretation adopted by the Court was that the circumstances that arose after the visa application has been lodged by the applicant, can also be considered by the Department and as a result, it was not only confined to the circumstances that were present when the applicant had made the application for the grant of visa. Conclusion: Therefore, in view of the statutory interpretation that has adopted by the Full Court, it is necessary that the Department and the Tribunal should consider the circumstances that arose while the application was being evaluated and not only the circumstances that existed when the application was made. Bibliography Acts Interpretation Act 1901 Migration Act 1958 Migration Regulations (Amendment) 1996 No 75 (Cth), Explanatory Statement Migration Regulations 1994 Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 [1] Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 [2] Migration Act 1958 [3] Acts Interpretation Act 1901 [4] Migration Regulations 1994 [5] Migration Regulations (Amendment) 1996 No 75 (Cth), Explanatory Statement