FEDERAL COURT OF AUSTRALIA
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32
Appeal from: Waensila v Minister for Immigration & Anor [2015] FCCA 2276 File number: NSD 1088 of 2015 Judges: DOWSETT, ROBERTSON AND GRIFFITHS JJ Date of judgment: 11 March 2016 Catchwords: MIGRATION – jurisdictional error – correct construction of provisions relating to Partner (Temporary) (Class UK) visa – appeal on whether the appellant met relevant criteria for the grant of a visa – whether Minister was prevented from having regard to any “compelling reasons” which relate to circumstances which occurred after time of application – whether heading of the regulation connects grammatically to its terms – purpose of the waiver provision within the regulations and whether it is itself a criterion Legislation: Acts Interpretation Act 1901 (Cth), s 13(2)(d)
Legislation Act 2003 (Cth), s 13(1)(a)
Migration Act 1958 (Cth), ss 29(1)(b), 54, 55, 65
Migration Regulations 1994 (Cth), regs 1.03, 2.01, 2.03, Sch 1, cl 1214C, Sch 2, Pt 820 cll 820.21, 820.211, 820.211(1)(b), 820.211(2), 820.211(2)(d)(ii), 820.22, 820.221, 820.221(1)(a), Sch 3, criteria 3001, 3003 and 3004
Migration Regulations (Amendment) 1996 No 75 (Cth), Explanatory Statement
Cases cited: Bains v Minister for Immigration and Citizenship [2012] FCA 649; (2012) 205 FCR 217
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 264 ALR 417
Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438; (2002) 116 FCR 557
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Date of hearing: 24 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 61 Counsel for the Appellant: Ms T Baw Solicitor for the Appellant: Parish Patience Immigration Lawyers Counsel for the First Respondent: Mr GR Kennett SC with Mr JB Kay Hoyle Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent submitted save as to costs ORDERS
NSD 1088 of 2015 BETWEEN: FARID WAENSILA
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGES:
DOWSETT, ROBERTSON AND GRIFFITHS JJ
DATE OF ORDER:
11 MARCH 2016
THE COURT ORDERS THAT:
1.The appeal be allowed, with costs.
2.Orders 2 and 3 made in the Federal Circuit Court of Australia on 21 August 2015 be set aside and, in substitution for those orders, order:
(a)the Tribunal’s decision dated 14 April 2015 be set aside;
(b)the matter be remitted to the Administrative Appeals Tribunal to be determined in accordance with law; and
(c)the Minister pay the appellant’s costs of the application in the Federal Circuit Court of Australia.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DOWSETT J:
I have had the benefit of reading the separate reasons prepared by Robertson J and by Griffiths J.
I agree that the present problem is resolved by recognizing that cl 820.211…
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CaseChat Overview and Summary
In the case of Waensila v MIBP, the appellant, a Thai citizen, sought to appeal the refusal of his application for a Partner (Temporary) (Class UK) visa. The appellant applied for both temporary and permanent partner visas in September 2010, shortly after marrying his Australian citizen wife. The delegate of the Minister for Immigration and Border Protection denied his application, finding that the appellant did not meet the criteria for a visa under the Migration Regulations 1994 (Cth). Specifically, the delegate found that the appellant did not satisfy the requirement to lodge his partner visa application within 28 days of the "relevant day" as stipulated in Schedule 3 criterion 3001. The appellant argued that there were compelling reasons to waive this criterion.
The central legal issues before the court involved the interpretation of the relevant provisions of the Migration Regulations, particularly whether the Minister was precluded from considering compelling reasons that arose after the visa application was lodged. The court also examined whether the heading of the regulation connected grammatically to its terms and whether the waiver provision itself constituted a criterion. The court needed to determine if the Minister could exercise discretion in considering compelling reasons that related to circumstances occurring post-application.
The court found that the Minister was not precluded from considering compelling reasons that arose after the visa application was lodged. It held that the heading of the regulation did connect grammatically to its terms and that the waiver provision was indeed a criterion. The court concluded that the Minister could have regard to compelling reasons, even if they pertained to circumstances that arose after the visa application was made. Consequently, the court allowed the appeal, set aside the decisions of the Federal Circuit Court and the Administrative Appeals Tribunal, and remitted the matter back to the Tribunal for reconsideration in light of the court's findings. The Minister was ordered to pay the appellant’s costs.
The central legal issues before the court involved the interpretation of the relevant provisions of the Migration Regulations, particularly whether the Minister was precluded from considering compelling reasons that arose after the visa application was lodged. The court also examined whether the heading of the regulation connected grammatically to its terms and whether the waiver provision itself constituted a criterion. The court needed to determine if the Minister could exercise discretion in considering compelling reasons that related to circumstances occurring post-application.
The court found that the Minister was not precluded from considering compelling reasons that arose after the visa application was lodged. It held that the heading of the regulation did connect grammatically to its terms and that the waiver provision was indeed a criterion. The court concluded that the Minister could have regard to compelling reasons, even if they pertained to circumstances that arose after the visa application was made. Consequently, the court allowed the appeal, set aside the decisions of the Federal Circuit Court and the Administrative Appeals Tribunal, and remitted the matter back to the Tribunal for reconsideration in light of the court's findings. The Minister was ordered to pay the appellant’s costs.
Orders
Orders of the court
1. The appeal be allowed, with costs.
2. Orders 2 and 3 made in the Federal Circuit Court of Australia on 21 August 2015 be set aside and, in substitution for those orders, order:
(a) the Tribunal’s decision dated 14 April 2015 be set aside;
(b) the matter be remitted to the Administrative Appeals Tribunal to be determined in accordance with law; and
(c) the Minister pay the appellant’s costs of the application in the Federal Circuit Court of Australia.
Background
Background to the litigation
It is convenient to summarise the primary background facts before setting out the relevant statutory and regulatory framework. Summary of background facts On 10 September 2010, the appellant applied for temporary and permanent partner visas (Parts 820 and 801) on the basis of his marital relationship. Under the regulations, an application for a Class UK partner visa had to be made in Australia and when the visa applicant was in Australia (see cl 1214C(3) of the Migration Regulations 1994 (Cth) (the Regulations)). The appellant’s wife, who was an Australian citizen, was his sponsor. The couple had married on 5 September 2010. The appellant, who is a citizen of Thailand, initially arrived in Australia on a visitor visa in November 2007. He subsequently applied unsuccessfully for a protection visa. His challenges to that adverse decision culminated in proceedings in the High Court, which were determined against him in October 2009. As at 10 September 2010, the appellant did not hold any substantive visa. At the material times, the relevant criteria governing the grant of a partner visa were set out in Pt 820 of Sch 2 to the Regulations. The delegate refused the partner visa application because he found that the appellant did not satisfy cl 820.211(2)(d)(ii) of the Regulations (which is set out in [40] below). The effect of this provision, which formed part of the criteria which had to be satisfied at the time of application, required the appellant, as a person who did not hold a substantive visa at the time he applied for a partner visa, to satisfy Sch 3 criteria 3001, 3003 and 3004, unless the Minister was satisfied that there were compelling reasons for not applying those criteria. The relevant terms of these criteria are set out in [42], [44] and [45] below. The only relevant issue was whether the appellant satisfied criterion 3001, which required that his partner visa application must have been lodged within 28 days of the “relevant day” (it was common ground that, in the appellant’s case, the “relevant day” was 11 February 2008, which was the date when the appellant’s visitor visa expired). The appellant could not meet this criterion, because, as noted above, his partner visa application was lodged on 10 September 2010, which was well outside the 28 day period which commenced on 11 February 2008. It is relevant to the task of construction to note, however, that if the Minister was satisfied that the appellant satisfied criterion 3001, he would also have had to have been satisfied that the appellant satisfied either criterion 3003 or criterion 3004 (which were alternatives). For reasons which will be given below, this is relevant to the task of construction. The appellant submitted to both the delegate and the Tribunal that there were “compelling reasons” for waiving the requirement that he meet the relevant Sch 3 criteria (which would mean that he would not have to leave Australia in order to reapply for the visa), namely:(a)his fear of persecution to lodge a fresh application if he were to return to Thailand as a Thai Muslim citizen;(b)his fear that he would never be reunited with his wife if he returned to Thailand;(c)his concern that the long period of separation from his wife would affect their relationship;(d)his wife suffered from allergies in her eyes, difficulty sleeping, blackouts, epilepsy, diabetes, arthritis in her back, cholesterol and was under constant medication for various illnesses and relied on the appellant for continuing care; and(e)his wife was not working and was financially dependent on him.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Section 65 required that if, after considering a valid application for a visa, the Minister was satisfied inter alia that relevant criteria prescribed in the Act or Regulations had been satisfied, the Minister must grant the visa. If the Minister was not so satisfied the visa must be refused. Section 65 is important to the task of construing the relevant provisions in that it established that the relevant time at which a determination was to be made by the Minister (or his or her delegate) as to whether an applicant with a valid application for a visa satisfied the relevant criteria for the grant of that visa is the time when the decision is made whether or not to grant or refuse the visa (and not, for example, at some other earlier time, such as at the time the visa application was made). At the relevant time, s 65 provided:Decision to grant or refuse to grant visa(1) After considering a valid application for a visa, the Minister:(a) if satisfied that:(i)the health criteria for it (if any) have been satisfied; and(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and(iii)the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and(iv)any amount of visa application charge payable in relation to the application has been paid;is to grant the visa; or(b) if not so satisfied, is to refuse to grant the visa.Note:See also section 195A, under which the Minister has a non‑compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister’s power under that section.(2)To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3). At the relevant time, reg 2.01 of the Regulations provided that, for the purposes of s 31 of the Act, the prescribed classes of visa were such classes as were set out in the respective items in Sch 1 to the Regulations (other than those created by the Act itself). Regulation 2.03 provided that, for the purposes of s 31(3), the prescribed criteria for the grant to a person of a visa of a particular class included the primary criteria set out in the relevant part of Sch 2 of the Regulations. Regulation 2.03(2) relevantly provided that, if a criterion in Sch 2 referred to a criterion in Sch 3, a criterion so referred to must be satisfied by an applicant as if it were set out at length in the first-mentioned criterion. Part 8.20 of the Regulations contained provisions concerning partner visas. The primary criteria for the particular partner visa were set out in cl 820.2. The criteria which had to be satisfied at the time the partnership visa application was made were set out in cl 820.21, which relevantly provided:820.21 – Criteria to be satisfied at time of application 820.211(1) The applicant: (a) …; (b)meets the requirements of subclause (2), (5), (6), (7), (8) or (9). (2) An applicant meets the requirements of this subclause if: (a) …(c) …(d)in the case of an applicant who is not the holder of a substantive visa – either: (i) …; or (ii)the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
Ratio Decidendi
Legal Principle Established
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