The Migration Regulations contain
a provision (called Schedule 3 criteria) which entitles people in a
relationship, but without a substantive visa, to lodge a visa application if
they can demonstrate that compassionate and compelling circumstances exist.
Unfortunately, over time, department policy has tightened, with the result that
many applications have been refused on the ground that compassionate and
compelling circumstances could not be demonstrated to have existed at the time
the application is lodged.
A recent court case of Waensila v Minister
for Immigration and Border Protection has had a big impact on how applications may
be dealt with from here on.
In
this case, the Applicant’s circumstances highlighted that over the passage of
time (3 and a half years) since applying for a Partner Visa, compassionate and
compelling circumstances arose, which demonstrated that the applicant and his
wife would experience hardship should he have to depart Australia to make a
fresh application. As a delegate is obligated to consider all of the
information before them in making a decision, it is now within their power to
consider, post-application, compassionate and compelling circumstances that may
exist.
The
Federal Court of Australia in overturning the case of Boakye-Danquah v
Minister for Immigration [2002] FCA 438; 116 FCR 557 determined that
neither the legislation nor the explanatory memorandum restricted the use of
the Schedule 3 waiver to the time of application. In rejecting the Respondent’s
argument, Griffiths J characterised the waiver provision as a power to dispense
with a criterion and not a criterion itself. As a result, the exercise of the
waiver is not to be confined to the time of application requirement that the
remainder substantive issues of the application are. In reference to the
Explanatory memorandum, the Federal Court highlighted that the Schedule 3
waiver provision was intended to allow for cases where compassionate and
compelling circumstances exist such that the Applicant should not have to leave
Australia. Having regard to the purpose in which the waiver was introduced, the
Federal Court found that the waiver must be flexible to achieve that purpose
and that there are no inhibitions that restricted the use of this waiver to the
time of application.
Time
will tell whether the Department of Immigration is prepared to accept this
decision and assess applications on the basis of it, or alternatively, whether
legislation will be implemented to revert to the more strict regime which has
applied up until now.
Please contact Nevett Ford Lawyers Melbourne if we can be of assistance.
