Spouse/Partner visa that have been REFUSED take NOTE. Big win for justice – Federal Court finds no temporal element in “compelling compassionate” submission
Very Important case for Partner visas particularly.
If you or any one you know has applied for or is thinking of applying for or has had a Partner/Spouse visa refused because you were unlawful or did not hold a substantive visa – or were subject to schedule III talk to AR LAW Services and how this Federal Court case may apply to you.
IF YOUR PARTNER VISA HAS BEEN REJECTED EVEN BY THE AAT – call AR LAW Service TODAY for an Appointment – call 96140218 or email info@arlaw.com.au
Waensila v Minister for Immigration and Border Protection (2016) FCAFC 32 (11 March 2016)
The Full Court unanimously held that there is no “temporal” limitation on when the compelling circumstances relied on for a Schedule 3 “waiver” must have existed.
The Court held that the proper interpretation of Subclause 820.211(2)(d)(ii) is that compelling circumstances can be considered without regard to when they occurred.
Therefore, the Department and the Tribunal are not confined to considering compelling circumstances that existed at the time that the application was made. Circumstances that have arisen after the application was made can and must be taken into account.
The Full Court held that the Tribunal had committed jurisdictional error by construing subclause 820.211(2)(d)(ii) to mean that the only matters that could be considered as compelling reasons for not applying Schedule 3 had to be in existence at the time of the lodging of the partner visa application.
Held by Judge Robertson’s view that since the purpose of the Minister’s having discretion not to apply (or to “waive”) Schedule 3 was to give the Minister “greater flexibility if and when compelling circumstances arise and, for example, to avoid hardship to the visa applicant”, it would be inconsistent with that purpose to adopt an interpretation that would limit the circumstances that could be taken into account “to circumstances existing at some past point”.
It was Judge Dowsett’s view that the circumstances which can be relied upon to justify the exercise the discretion not to apply Schedule 3 should not be limited in the absence of “statutory or regulatory requirements”. And neither subclause 820.211(2)(d)(ii) include any requirements which restrict the matters which may be considered as “compelling” only to those which are in existence at the time that the partner visa application is lodged.
The reasons given by Judge Griffiths were as follows:
The power to dispense with, or “to waive”, Schedule 3 requirements, is not itself a “criterion” of Part 820 to Schedule 2 of the Regulations. Therefore, in His Honour’s view, the heading that appears at clause 820.21 that reads: “Criteria to be satisfied at time of application” does not have the effect of confining the decision-maker’s consideration of whether there are compelling circumstances only to matters which are in existence at the time of the application;
The “waiver power” in subclause 8320.211(2)(d)(ii) is expressed in terms that the Minister “is satisfied that there are compelling reasons for not applying” Schedule 3, and that this language implies that the waiver power would be exercised at the “time of decision” as to whether to grant a visa, and thus the matters to be taken into account should extend to matters in existence not just at the time of application, but also at the time of decision;
Since the “waiver power” was intended to alleviate hardship, it was necessary that there be clear words in the text of the legislation and regulations confining the matters that could be considered – and since no such language exists, it is not appropriate to interpret the regulations as limiting the reasons that can be considered to those that exist at the time of application;
The Explanatory Statement to the amendments that introduced clause 820.211(2(d)(ii) do not contain anything which says that the circumstances which are relied on as the basis for seeking a “waiver” of Schedule 3 must exist at the time of the application.
If you or anyone you know has had a partner visa refused either by the department or by the AAT – even if you are now before the Minister – please speak to one of the lawyers at our office for thorough advice on your options.
Call 
03 9614 0218 or email info@arlaw.com.au to arrange a free initial 30 Minute consultation at our Melbourne office.
For more go to www.arlaw.com.au
Note: this update, or any previous updates on this page, do not constitute legal advice and should not be relied upon as such. Please call our office to seek professional advice before acting or relying on any of the content on this page
