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.
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.
