Partner Visa & Schedule 3 Criteria
‘Compelling reasons’ for not having a substantive visa when applying for an onshore spouse visa (820/801) must be determined at time of decision not time of application according to the Full Federal Court in Waensila v Minister for Immigration and Border Protection  FCAFC 32, made on 11 March 2016 in a unanimous decision. This overturns a policy injustice which has infected the spouse visa regime for a number of years. The reasoning in Waensila also shows that a careful textual analysis is essential to statutory interpretation in the complex labyrinth of the Migration Act and regulations. Plus in so many case there is a role to play for going back to the original Explanatory Statement attached to the enactment to obtain a better and fuller view of what the purpose and context was for the amendment.
The effect of Waensila is to open up compelling reasons to include circumstances that have occurred well after lodgement of the Partner visa application, when requesting that Minister (or delegate) exercise the discretionary power to waive the Schedule 3 criteria.
What Waensila means is that the Migration Review Tribunal or the Administrative Appeals Tribunal was wrong when it applied the ‘compelling reasons’ test at time of visa application. Waensila means that what a tribunal has to do is apply the analysis and consideration based on what exists at the time it comes to make the decision which, as can be seen, could be some years after the visa application was lodged.
It follows that every decision by a tribunal even if made months or years ago is capable of being overturned in the Federal Circuit Court if that tribunal decision was based on limiting itself to what ‘reasons’ existed as at the date of visa application. Even though the, ‘as of right time limit’ to bring a judicial review application is 35 days after the date of the decision, the court has a general power to extend this time limit under s 477(2) of the Migration Act which reads :
(2) The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
Given the reasoning of the Full Federal Court in Waensila, prima facie it would be unjust to uphold what was at all material times a wrong decision.
The writer as already commenced proceedings in the Federal Circuit Court seeking judicial review to overturn a decision of the AAT made more than 9 months ago. [The writer is prepared to consider other cases on a ‘no-win no fee’ basis.]
It is useful to set out the relevant regulations in full to obtain an understanding of how the regulations ought to be applied as the Full Federal Court reasoning in Waensila may have wider significance than just this particular regulation.
820.21 – Criteria to be satisfied at time of application
(1) The applicant:
(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
(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.
Paragraph 3001 states :
3001 (1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
The ‘relevant day’, of course, is the day the applicant ceased to hold a substantive visa.
Hence the spouse visa applicant on a bridging visa needs to show ‘compelling reasons’ in order not to apply paragraph 3001.
An earlier decision of Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs  FCA 438 had provided support for some of the reasoning that the task set out in paragraph 820.211(2)(d)(ii) had to be assessed based on circumstances in existence at time of visa application. Boakye-Danquah was specifically overturned by Waensila.
It useful to look at the reasoning of Robertson J who wrote the most comprehensive judgment. Central to the reasoning was determining the relevance of this phrase forming the heading :
820.21 – Criteria to be satisfied at time of application
Robertson J had this to say :
11….it is not a correct starting point to describe the Minister’s discretion as itself a criterion. It is more accurately to be described, as is clear from its terms, as a power to decide that Schedule 3 criteria 3001, 3003 and 3004 not apply so that the visa applicant need not satisfy them at the time of the application for the visa.
The rest of his reasoning is particularly instructive :
15 The question is,…., whether the Minister’s discretion in cl 820.211(2)(d)(ii) is limited by the statute to circumstances obtaining at the time of application for the visa which may,…., be a point many years in the past.
16 The tense of the verbs in cl 820.211(2)(d)(ii) tends against the more limited construction. The provision refers to where the Minister “is satisfied” that there “are compelling reasons” … and refers to compelling reasons for not applying the criteria. Plainly, the criteria are otherwise to be satisfied at the time of application but that does not answer the question when the issue is the Minister’s overriding discretion. As I have said, it is common ground that the Minister’s discretion is to be exercised at the time he decides whether or not to grant the visa.
17 In my opinion, this consideration is supported by the reasoning of the High Court in Berenguel at  when considering an argument whether the text of Pt 885 supported any general conclusion that the criteria in that Part spoke exclusively to satisfaction at the time of application.
18 Further, if, as I accept, the purpose of the Minister’s discretion in cl 820.211(2)(d)(ii) is to give the Minister greater flexibility if and when compelling circumstances arise and, for example, to avoid hardship to the visa applicant, then to my mind it would be inconsistent with that purpose to limit the circumstances the Minister may take into account to circumstances existing at some past point. The immediate purpose of the discretion is to relieve the visa applicant from being required to satisfy at the time of application Schedule 3 criteria 3001, 3003 and 3004. I see no reason to limit the circumstances, whether they favour the visa applicant or not, to the position at a time before, and often substantially before, the Minister considers the exercise of that discretion. Clause 820.211(2)(d)(ii) is an ameliorating provision and it should not, in my opinion, be given a construction which prevents the Minister, at the time of his decision, from taking into account in assessing “compelling reasons”, the circumstances which prevail at that time.
19 Implicit in what I have already said is the importance, to my mind, in the task of statutory construction of the nature and purpose of the power conferred by cl 820.211(2)(d)(ii) on the Minister. Conferred on the Minister is a discretionary power to be satisfied that the specified criteria, being Schedule 3 criteria 3001, 3003 and 3004, do not apply. It is a power, where the Minister is satisfied that there are compelling reasons for doing so, to effect the result that the visa applicant is not required to meet those criteria which would otherwise be required to be satisfied at the time of application.
20 The evident purpose of the provision was a factor in the reasoning of the High Court in Berenguel at  [Berenguel v Minister for Immigration and Citizenship  HCA 8].
21 I also add, conformably with the reasoning of the High Court in Berenguel at , that the heading to cl 820.21 does not connect grammatically to the power conferred by cl 820.211(2)(d)(ii) on the Minister, being a discretionary power to be satisfied that the specified criteria, otherwise to be satisfied at the time of application, do not apply.
22 For these reasons…., I would not follow Boakye-Danquah and it should be overruled.
It is also worth reading the reasons of Griffith J for a different way of expressing how to come to the same conclusion :
52 The heading to cl 820.21 makes clear that the time at which the criterion specified relevantly in cl 820.211(1)(b) has to be satisfied is at the time of the application. That does not determine, however, that the waiver power in cl 820.211(2)(d)(ii) is also limited to events which exist as at that time. One reason why that is so is that, contrary to the Minister’s submission, I consider that the waiver power is not itself a criterion. Rather, it is properly characterised as a power to waive or dispense with what otherwise is a requirement which forms part of the criterion in cl 820.211(1)(b). In my view, the heading does not have the effect of confining the decision-maker’s consideration of whether there are compelling reasons which warrant the exercise of the waiver power to circumstances which only exist as at the time of application.
53 Other considerations support this construction. First, the waiver power is expressed in terms of whether “the Minister is satisfied that there arecompelling reasons for not applying” the specified Sch 3 criteria… The occasion for considering whether or not to exercise the waiver power will arise when the Minister (or his or her delegate) comes to consider the exercise of the power under s 65 of the Act. On that occasion, the decision-maker will need to determine whether he or she is satisfied that the visa applicant meets (or, more accurately, “satisfies”) the specified Sch 3 criteria as at the time of the application. If the requisite satisfaction does not exist, the question will then arise whether or not the waiver power should be exercised in respect of any of those Sch 3 criteria. If the decision-maker is satisfied that compelling reasons exist for not requiring the partner visa applicant to satisfy the relevant Sch 3 criteria, the practical effect will be that the applicant will not be required to leave Australia and make a fresh application overseas for a visa.
54 The waiver power was obviously intended to be available to deal with cases where there were “compelling reasons” for not putting particular applicants to the hardship of having to leave Australia for that purpose. Given the nature of that power and the time when its possible application arises for consideration, clear words are required which would have the effect of confining that consideration to events which only existed at the time the visa application was made. Such a restriction would remove from consideration circumstances which occur after that date and constitute “compelling reasons” for not exposing some partner visa applicants to the hardship of leaving Australia and make a fresh application from overseas. I do not consider that the text of the relevant provisions contains such clear words.
55 Secondly, the Minister did not contest that it was appropriate to have regard to the Explanatory Statement to the 1996 amendments in resolving the central issue of construction…
56 The extracts from the Explanatory Statement (which are set out in  above), confirm that the purpose of the waiver power is to provide the Minister (or his or her delegate) with flexibility to respond to compelling circumstances which justify dispensing with the obligation of particular partner visa applicants to satisfy the Sch 3 criteria, such as hardship that may be occasioned if an unlawful non-citizen who wishes to remain in Australia to be with their partner has to leave Australia and apply from overseas because they do not satisfy these criteria. The Explanatory Statement gives examples of matters of a “strongly compassionate” nature, which include where there are Australian-citizen children from the couple’s relationship or the visa applicant and his or her sponsor are in a long-standing relationship which has been in existence for two years or longer. There is nothing in the Explanatory Statement which suggests that such circumstances have to exist at the time of application. Rather, the examples are expressed in a way which suggests that the decision-maker can take into account strongly compassionate circumstances which exist when consideration is given to whether or not to exercise the waiver power, even if those circumstances or “compelling reasons” post-date the time of application.
57 The point is well illustrated by the appellant’s own circumstances. It took almost three and a quarter years for the delegate to determine his partner visa application. During that period, the appellant and his wife remained married and she became dependent upon him not only financially but also concerning her various health issues. It is difficult to understand the logic or policy for denying the decision-maker the right to take these matters into account in determining whether the appellant should be required to leave Australia and make an application for a different partner visa from overseas (the appellant did not dispute that if he were required to return to Thailand he could lodge an application there for a partner.. visa. Circumstances which constitute “compelling reasons” and give rise to hardship can arise at any time, including after the application is made. Clear words are required to prevent the Minister from taking such matters into account.
58 Thirdly, the terms of criteria 3003 and 3004 support the appellant’s construction…. In the light of s 65 of the Act, the decision-maker’s “satisfaction” had to exist at the time he or she was determining whether or not to grant or refuse the visa. Nothing in the terms of either criteria 3003 or 3004 would exclude the decision-maker, in determining whether or not they were satisfied that the applicant met paragraph (d) of these criteria, from taking into account circumstances giving rise to “compelling reasons” for granting the visa which post-dated the making of the application. Although the concept of “compelling reasons” in paragraph (d) of those criteria arises in a different context from that in cl 820.221(2)(d)(ii), I consider that clearer words would be required than those which appeared in the relevant provisions to produce a result which confined the decision-maker, for the purposes of cl 820.221(2)(d)(ii), to consider only “compelling reasons” which existed as at the date of application, while at the same time permitting the decision-maker to take into account “compelling reasons” which emerged after the date of application for the purposes of paragraph (d) in criteria 3003 and 3004.
59 It follows from what I have said above that, with great respect, I consider that Boakye-Danquah was wrongly decided and should be overruled on this point.
60 For completeness, I would also add that I reject the Minister’s reliance upon the fact that cl 820.221(1)(b) imposes a criterion which requires an applicant such as the appellant to continue to meet the requirements of, relevantly, cl 820.211(2), as at the time of decision. This submission proceeds on a wrong premise, namely that the waiver power itself is to be viewed as a criterion. For the reasons given above I consider that to be an incorrect characterisation of the nature of that power.
What is are ‘compelling reasons’ will vary from case to case but things like the length of the relationship is relevant as would be the existence of Australian citizen offspring born after the visa application is made.
The word ‘reasons’ as work to do. ‘Reasons’ do not necessarily require specific factual findings. The word ‘reasons’ encompasses broad terms encompassing a wide range of considerations.
Even when time of decision considerations are necessarily required by the exact working of a regulation, the law does not require that the inquiry in any event is restricted to what had occurred as at that date of application.
The law on this point was aptly described in Sai Chi Noriman Mak v Immigration Review Tribunal and the Minister of Immigration, Local Government and Ethnic Affairs  FCA 918; [(1994) 48 FCR 314 (1994) 33 ALD 503 (21 February 1994)] where the Court concluded that ‘evidence of subsequent events could be admitted where it might be relevant to the existence of a fact as at the earlier time’. The context of that conclusion is set out below :
- Although it was asserted by the appellant in his notices of appeal and in both written and oral argument that publication of the Profile occurred after the delegate’s decision, no publication date was particularised. This was in contrast to the particularisation of publication dates for the May 1991 RATE Guidelines and the Alexander letter. This was somewhat unfortunate because the closer the date upon which the Profile was published was to the delegate’s decision the more likely it was that the Tribunal could have regard to it. I say this because in my view a subsequent publication such as the Profile may tend “logically to show the existence or non-existence of facts relevant to the issue to be determined” to quote Deane J in Minister for Immigration, Local Government and Ethnic Affairs v. Pochi  FCA 85; (1980) 4 ALD 139at p 160. I propose to follow the course taken by O’Loughlin J in Bretag v Immigration Review Tribunal and Minister for Local Government and Ethnic Affairs (unreported 29/11/91 Judgment No. 755/1991) and Hill J in Surinakova v. Minister for Immigration, Local Government and Ethnic Affairs  FCA 596; (1991) 33 FCR 87at p 94. In each of those cases it was held that evidence of subsequent events could be admitted where it might be relevant to the existence of a fact as at the earlier time.
As set out in Sai Chi Noriman Mak, even if a matter has to be determined at time of visa application, the criteria that have to be determined as at that date cannot be viewed in isolation to later events, as later events impact on the gloss to be placed on earlier events and considerations.
NO TIME OF APPLICATION/TIME OF DECISION DICHOTOMY FOR NOMINATIONS
Finally as mentioned in the Temporary Work visa paper and the Employer Nomination Scheme paper there is no time of application/time of decision dichotomy for nominations.
For the nomination process in ENS, other than reg 5.19(c), there is no time of application/time of decision dichotomy for nominations unlike the ENS visa application which includes time of application and separately time of decision criteria.
This is an extremely important practice point and awareness of this point can convert what may seem a hopeless case into a winning case. This is because evidence can be added to the nomination process right up to time of decision and the decision maker is not bound by facts in existence at the time the nomination application was lodged.
This is in contrast to the assessment of the visa application itself. For most visas there are time of application criteria and time of decision criteria. Whilst new evidence can be presented at time of decision regarding meeting the time of application criteria, the facts however have to have been in existence as at time of application. New evidence in this context is about proving facts in existence at time of application even though the evidence to prove those facts had not been supplied at time of application.
In contrast nominations are just about proving the facts which go to establish the nomination.
For example Reg 5.19 states:
[5.19] (4) The Minister must, in writing, approve a nomination if: [etc]
No where, other than reg 5.19(c), do the regulations refer to time of application or time of decision. Hence in administrative law terms when such specification is not made the Minister or the delegate must make the decision on the latest information available.
This requirement was aptly described by Mason J (as he then was) in the High Court decision of MINISTER FOR ABORIGINAL AFFAIRS v PEKO-WALLSEND LTD.  HCA 40; (1986) 162 CLR 24 :
20……In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.
This equally applies to the Administrative Appeals Tribunal on review in relation to a nomination, further information being permitted based on facts in existence as at the time of decision by the tribunal.
This principle also applies to the nomination process in subclass 457 visas. Things like the training benchmark for example can be fixed up at the time of decision which includes any relevant tribunal time of decision.
The AAT has begun to apply Waensila. In one decision in the writer was involved the subclass 820 visa was lodged on 20 February 2014. At the time of decision by the AAT on 8 April 2016, the applicant was in an advanced stage of pregnancy, the AAT finding that the de facto spouse was the father. Medical evidence established that the baby was due in mid June 2016, and therefore the AAT concluded that the “upcoming birth of the ..baby” was a compelling circumstance.