New Federal Court Decision on Schedule 3 and its Effect on Visa Applications

Just recently, the Full Court of the Federal Court of Australia delivered a ground-breaking decision in relation to a case concerned with the application of Schedule 3 criteria for a partner visa.

The case at hand is that of Waensila v Minister for Immigration and Border Protection (2016) FCAFC 32 (11 March 2016). By law, for a successful on-shore application to be processed, the primary applicant is required to be the holder of a substantive visa at the time of application in order to lodge a valid visa application.  Otherwise, they must satisfy the Schedule 3 criteria as set out in the Regulations. According to the requirements of the legislation, the applicant must apply for a new substantive visa while being a holder of a valid substantive visa.

The requirement of the criteria under Schedule 3 can be waived only if, by effect of subclause 820.211(2)(d)(ii) of the Migration Regulations 1994, the Department is satisfied that there are “compelling reasons for not applying the criteria”. Previously, it was common practice by the Department as well as the Tribunal to consider the requirement of those criteria as being in existence at the time the relevant application was being made. Thus, any circumstances brought to the Department or the Tribunal’s attention as affecting the applicant’s situation after the time of lodgement of the application were not taken into consideration when assessing the application.

This is where the importance of the Waensila decision lies. The Full Court of the Federal Court of Australia unanimously held that the legislation does not impose a temporal limitation of the compelling and compassionate grounds relied on when considering a waiver of the Schedule 3 criteria. Hence, when interpreting subclause 820.211(2)(d), the Court decided that the effect of compelling circumstances will be carried through when the application is being assessed, not merely at the time of application. By effect of the decision, the Department and the AAT must take into account the circumstances of the applicant as existing when the assessment of the application occurs.

Justice Dowsett was of the opinion that the legislative requirement does not impose a limitation relating to time when examining the satisfaction of the criteria. Rather, his view is that the waiver power can be exercised at the discretion of the Minister. The temporal limitation should not be treated in itself as a relevant criterion. Accordingly, Justice Griffiths found that the waiver power is a means to alleviate hardship and enable the applicants to have their case individually assessed according to their personal circumstances. Since there is no express provision limiting the existence of compelling circumstances at the time of application, a rejection of relevant compelling reasons at the time of decision would be erroneous.

Effectively, the decision expands the grounds that the applicants can rely upon when applying for a Schedule 3 waiver. The decision also increases the prospects for applicants to remain on-shore while the application is being processed. In addition, the decision can also have a retrospective effect on previous cases decided by reliance on compelling circumstances at time of decision. The relevant cases are still required to be determined on their facts, however, the Court has the power to review cases even the official review period of 35 days has elapsed.