Immigration and Border Protection

Question: Discuss about the Immigration and Border Protection. Answer: Introduction: 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 The issue in this case is related with the practical implications of the decision given by the Full Federal Court in this case. In its decision, the Full Court of the Federal Court of Australia has overruled the interpretation of Schedule 3 that has been adopted by the DIPB. In this case, it was the opinion of the court that the interpretation that has been adopted by the Department was too strict and similarly, the court also believed that this interpretation was not supported by the law. The brief facts of this case are that the appellant was from Thailand and his wife was from Australia. Under these circumstances when the applicant made an application for partner Visa, he did not have a substantive Visa. Similarly, the criterion 3001 was not satisfied by the applicant. According to this criteria, it was required that the applicant should have made an application for partner Visa within 28 days after the expiry of his visitor visa. Therefore, efforts were made by the applicant to e stablish that there were compelling reasons due to which the requirements that have been prescribed by Schedule 3 should have been waived in his case, but he was not successful. While refusing the application, it was the opinion of the department that the discretion of the Minister was restricted only to the compelling reasons that were in existence when the applicant had made the application. As a result of this construction of these provisions, any compelling reasons that were related with the circumstances or events that came into existence after the application for partner visa was made by the applicant, cannot be considered. In this way, while the applicant tried to establish that feared persecution if he was make a fresh application after returning to Thailand as he was a Muslim citizen of Thailand. In the same way, the applicant also expressing his fears that they may not be able to meet his wife again if they had to go back to Thailand for making the application for partner visa. The applicant also tried to rely upon the fact that his wife was ill and required continuous medical attention along with the fact that his wife was dependent on him financially. However, it was the opinion of the department that these circumstances were not in existence when the applicant had made the application for partner visa and therefore, these compelling reasons cannot be considered for waving schedule 3 criteria. But the court did not accept this interpretation of the department of these regulations. The first issue pointed out by the court was that there was nothing in the words of these sections on the basis of which, it can be said that the consideration of decision-makers has been confined to the compelling reasons that were present at the time of making the application. The second issue raised by the court was that in this case it was obvious that the waiver power has been introduced with a view to provide flexibility while deciding the cases in which compelling reasons are present to which the applicants may not be put to the hardship of meaning Australia for the purpose of making the visa application. In this way, it was stated by the court that the strict interpretation that has been adopted by the department appears to be against the purpose due to which the waiver power has been introduced by the Legislature. Consequently, the court stated that the case should be sent back to the Ad ministrative Appeals Tribunal for a rehearing. Before this decision generally the applications of the applicants who were under similar circumstances in which the applicant in the present case was, (a non-citizen applying for partner visa while remaining in Australia) were not allowed the waiver of schedule 3 criteria and the result was that these applications had to leave Australia in order to make the application for visa. But in this case, in the opinion of all the three judges, no reasons were present which the circumstances can be restricted, whether they were in favor of the applicants or not, to the position at a time before the Minister arrives at the conclusion that such discretion should be exercised. As a result of the fact that almost entirely, it has been left to the immigration Minister or his delegate to decide if there are sufficient compelling reasons due to which a waiver of schedule 3 criteria should be granted, the judges gave a strong message in this case that i t is very significant that such decisions should be made by remaining within the bounds of law. Therefore, the impact of this decision can be described as being more sympathetic towards the applicants for partner visa as against the current policy interpretation that was adopted by the department. In the same way, there will be strong implications of this decision on the way in which the schedule 3 criteria is applied to the other applicants. In this way, it can be said that as a result of this decision, the grounds have been expanded on which the applicants may rely upon when they are applying for the schedule 3 criteria waiver. Similarly, as a result of this decision, it can also be said that the full court decision has increased the chances of such applicants to remain onshore when their visa application is being assessed. The decision is also likely to have a retrospective impact on the cases that were earlier decided by relying on the compelling circumstances that existed then the application was made. What principles of statutory interpretations (if any) were utilised by the Federal Court in this case? Answer: In this case, the court arrived at his decision by relying on certain principles of statutory interpretation. The term statutory interpretation is related with the action of the court for the purpose of understanding the specific meaning of a particular piece of legislation. A number of cases go to appeal on the issue of interpretation of a particular statutory provision. Broadly speaking, the statutory rules of interpretation are the literal rule, Golden rule and the mischief rule. The literal rule which is also known as the ordinary meaning rule, the court gives the literal meaning to the words of the statute, regardless of the fact that such result is sensible or not. On the other hand, the golden rule is considered as an exception to the literal rule. This rule of statutory interpretation is used when the application of the literal will result in an interpretation that circumvent instead of applying the intention of the Parliament. The final rule of statutory interpretati on is the mischief rule. According to this rule, a judge tries to determine the intention of the legislature or what is the mischief or a defect that the statute in question is trying to remedy and what ruling will effectively implement this remedy. In the present case, the full court applied the golden rule of statutory interpretation and arrived at the conclusion that the effect of sub-clause 820.211(2)(d)(ii) is that the compelling circumstances on which the applicant had claimed the way for a visit in the criteria, are not restricted to the circumstances that were at the time of making the application. In view of this interpretation of this provision by the court, despite the current policy adopted by the department and the tribunal according to which they only considered the circumstances that were present when the application was made, they had to consider the circumstances that arose after the application was made. Therefore, as a result of the statutory interpretation adopted by the court, despite its current policy, the Department and the Tribunal were under an obligation to consider the circumstances of the applicant that were present data in the application was made and not only the compelling circumstances that existed at the time of the application. In this regard, the provision in Migration Regulations mentions that the criteria provided by schedule 3 can be waived if the department is of the opinion that compelling circumstances are present in the case due to which the criteria should not be applied. Bibliography 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