Australian Immigration Law and Border Protection

Discuss about the Australian Immigration Law and Border Protection.

The Federal Court of Australia decided the case of “Waensila v. Minister for Immigration and Border Protection” and one of the groundbreaking decisions took place in the field of Australian Immigration Law. The decision helped in changing the perspective of the Tribunal to examine applications of partner visas from a different angle. The decision shall help in making lives of many visa applicants easier. In the given case, Waensila resided in Thailand and he reached Australia in the year 2007 in the month of November with a “visitor visa”. In the year 2009, he applied for a protection visa that was not successful and he in the aim of getting his protection visa approved went to High Court. However, he lost his case in the High Court. Once again, in the year 2010, he applied for a “partner visa” while he was in Australia without holding any substantive visa; however, he lost the application of partner visa as well because he failed to satisfy the condition that is stated in schedule 3 of the Migration Act. As per schedule 3 of the Migration Act, a person who is applying for a partner visa should apply within 28 days of his holding a substantive visa or else, his visa application shall not be considered as valid. In the case of Waensila, the 28 days time elapsed long ago in the year 2008 when his substantive visa was expired.

Tribunal Decision:

As per the Immigration Law of Australia, when a person is applying for Temporary Partner Visa (subclass 820) at the time when he is staying in Australia, the applicant, at the time of making such an application should have a substantive visa or else his application of partner visa shall be considered as invalid. This provision is contained in “Schedule 3 of the Migration Regulations.” The claimant should submit an application for a new visa before his twenty-eight days expires. Ideally, one may conclude that Waensila failed to comply with the statutory provisions of the Immigration law. However, the rule that is contained in Schedule 3 can be given up if the Minister is satisfied that there is prevalence of compassionate or compelling circumstances in any given case. This rule is stated in “sub clause 820.211 (2) (d) (ii) of the Migration Act.” In the opinion of the Department and the Tribunal, if there is existence of compassionate and compelling situations, then such situations has to exist at the occasion of making the submission of partner visa. However, the Department and the Tribunal failed to understand and identify that existence of compelling and compassionate situation cannot be time bound and that it may occur even after the applicant has made an application for partner visa. They clearly stated that while making the decision of Waensila that any compelling or compassionate situations that occurred after making the application of partner visa shall not be considered as valid and existence of such a condition shall not affect their decision-making. The Federal Court held that if one interprets the rule of “sub clause 820.211 (2)” then it might be concluded that if compelling situations prevail at the time of making an application or after making the application then such a condition should be taken into consideration by the Department and the Tribunal for granting a visa. This means that the Tribunal and the Department could have used their discretionary power and could have granted the visa on the ground that it is not necessary for compelling or compassionate situations to exist at the time of making an application of visa. If such situations occur even after the application of visa, the Tribunal could have considered it as compelling.

Arguments by the Applicant:

Waensila was stringent on his view that if the Tribunal wanted, it could have waived the application of schedule 3 by considering his situation as compelling or compassionate in nature. Waensila was a citizen of Thailand, he feared persecution in his country, and he feared that if he was told to return to Thailand he would never be able to meet up his wife for a second time and such a separation would affect his married life with his wife. The Tribunal should have considered existence of such a situation as compelling as this would lead to change of his existing circumstance. Moreover, his wife’s prevailing health condition was not good and she relied on Waensila financially and emotionally. However, these situations did not prevail when he made an application and the Tribunal concluded that such situation could not be considered as “compelling” as they did not occur at the time of making a claim.

Federal Court’s Decision:

Three Judges namely Dowsett, Griffiths and Robertson presided over the said case. Each one of them provided a different explanation, however, they substantially agreed with one another. The following were the reasons given by the Judges to decide the case of Waensila:

Judge Robertson – The Minister had the option of availing his discretionary power to waive application of schedule 3 of the Migration Act by considering Waensila’s situation as compelling or compassionate in nature. There was no restriction on the Minister he follow the statute the way it was written and that he was free to make use of his discretionary power and waiving schedule 3 application.

Judge Dowsett- The Minister has the power to use his discretionary power for granting or rejecting the visa and his discretion cannot be limited to regulatory or statutory requirements. Moreover, there is no provision in sub clause 820.211 (2) (d) (ii) that lays restriction on the Minister for considering only those situations as compelling that existed at the time of making an application. If such situations exist even after the application was made, the Minister may deem them as compelling in nature.

Judge Griffiths- The subclause 8320.211 (2) (d) (ii) has stated expressly that the Minister is endowed with the authority of using his discretion and he should not be restricted with its application that compelling or compassionate situation exist at the time of making the request of visa. This is stated in “section 65 of the Migration Act, 1958.”

This decision was extremely important as it opened new gates for the applicants to depend on those situations that took place even after the application of visa. The decision has increased the expectations of the claimants who wish to stay with their partners in Australia.

The Tribunal depended on the “literal interpretation of the statute.” The Tribunal interpreted the clause the way it was stated and depending on the literal meaning, they concluded that they could not waive application of schedule 3 as compelling and compassionate situation took place after the application of partner visa.

Nevertheless, the “Federal Court” upturned the conclusion of the Tribunal and it was held that the decree should not be read and interpreted the way it is written as it gave the authority to the Minister to make use of their discretionary in determining which situation is compelling or compassionate in nature. In this case, the Federal Court relied on the “golden rule of statutory framework.” This decree allows the Judge to interpret the law more than its literal sense so that the prevailing ambiguity is avoided in the existing law. The issue in this case was related to the construction of the statute and primarily the question was whether the Minister was satisfied or not with the prevalence of compelling or compassionate situations. The statutory interpretation of the clause restricted the Minister in only understanding those situations as compelling that survived at the time of making the submission. The Federal Court separated the prevailing uncertainty by stating that the Minister can make use of their prudence in analysing what situations can be deemed as compelling or compassionate in nature.

References:

Hollifield, James, Philip Martin, and Pia Orrenius. Controlling immigration: A global perspective. Stanford University Press, 2014.

Isaacs, David. "Doctors should boycott working in Australia’s immigration centres and must continue to speak out on mistreatment of detainees—despite the law." (2015): h3269.

Martinez, Omar, et al. "Evaluating the impact of immigration policies on health status among undocumented immigrants: a systematic review."Journal of Immigrant and Minority Health 17.3 (2015): 947-970.

McKenzie, Jaffa, and Reza Hasmath. "Deterring the ‘boat people’: Explaining the Australian government's People Swap response to asylum seekers."Australian Journal of Political Science 48.4 (2013): 417-430.

Nethery, Amy, Brynna Rafferty-Brown, and Savitri Taylor. "Exporting detention: Australia-funded immigration detention in Indonesia." Journal of Refugee Studies 26.1 (2013): 88-109.

Newman, Louise, Nicholas Proctor, and Michael Dudley. "Seeking asylum in Australia: immigration detention, human rights and mental health care."Australasian Psychiatry 21.4 (2013): 315-320.

Ortega, Francesc, and Giovanni Peri. "The effect of income and immigration policies on international migration." Migration Studies 1.1 (2013): 47-74.

Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32