Business Compliance Corprate Law

Questions: 1. Explain in plain English the practical implications of the decision of the Federal Court in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (copy attached)? 2. What principles of statutory interpretations (if any) were utilised by the Federal Court in this case? Answer: 1. The Waensila case is a landmark case as it has implications which are not limited to this case but would extend to future cases as well. However, the implications may be discussed once the case facts are presented. The given case involves a Thai citizen i.e. Farid Weansila who came to Australia as a visitor in November, 2007. However due to persistent turmoil in country of origin (i.e. Thailand), he filed an application for protection visa which the High Court rejected in October 2009. In September 2010, an application for obtaining a partner visa was filed by Farid. However, this was not granted citing non-compliance with criterion 3001 of Schedule 3. As per this particular rule, the partner or spouse visa application could be made within only 28 days of the date when a substantive visa is obtained. For Waensila, those 28 days got expired way back in 2008 only. However, in order to push forward his case and ensure that a partner visa is granted, he indicated at the following issu es so as to indicate the compelling circumstances for consideration of this case. Farid on account of being a Muslim could potentially face persecution on return to the country of origin i.e. Thailand. Returning to Thailand could close all avenues for Farid to spend time with his wife which would have adverse implications for their relation especially taking into consideration the health issues of wife. Also, he was responsible for caring for his wife financially considering her dependence on Farid and hence, leaving Australia could be potentially disastrous for the couple. Even though the above circumstances were highlighted but still the Migration Review Tribunal shot down the visa application as the Schedule 3 was violated. However, this decision was eventually overturned in the Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 case that was decided by the Federal Court. The honourable judges opined that it is imperative to maintain the requisite flexibility in the underlying law so as to ensure that the spirit of the law is complied with. The Subclause 820.211(2)(d)(ii) was interpreted by the honourable court as being independent of the time when such circumstances occur. This effectively meant that it is not necessary that compelling conditions should exist at the time of application but could also occur afterwards and it is necessary that these must be taken into consideration before passing a decision. After this case, the existing rules have been modified by the DIBP (Department for Immigration and Border Protection) whereby the compelling circumstances to be considered must not be limited to the time of application but may arise later and would have to be taken into consideration by the relevant authority. This change would lead to an immediate effect and the rulings in favour of the applicants would increase. This was apparent when a client of James Tan Consultants was accorded a favourable decision on 5 April, 2016 based on the above change incorporated in the law. However, a verdict was given by the Federal Circuit court on the same date as the Waensila verdict which contradicted the approach and principles referred to by the Federal Court and potentially led to confusion. This was the Kaur vs Minister for Immigration and Border Protection case where it was pronounced that compelling circumstances arising after the application has been filed would not be considered for granting waiver of Schedule 3. Even though it seems that the two decisions violate each other, but more emphasis must be placed on the decision by the Full Court i.e. Waensila case decision. This is primarily because it seems that the Federal Circuit Court while giving out the verdict was unaware of the Waensila verdict or would have most likely modified the verdict to be in line with the Full Court reasoning. The verdict in Waensila case would tend to act as precedent for the future cases in this regard and hence the tribunals and other courts would need to take into consideration till the time of decision making so as to decide whether waiver of Schedule 3 can be provided or not. This in all likelihood would enhance the overall scope of compelling circumstances being used for grant of visa. Hence, this particular verdict provides ray of hope to the genuine cases that may have compelling circumstances but failed to adhere to the Schedule 3 criteria. This change would thus make it easier for immigrants to seek partner visa especially if there are compelling circumstances that present a strong rationale for issuing visa. The implication of Waensila case would not only be limited to usage in future cases but could also open a host of reviews on past decisions which can be overturned in light of the altered interpretation. This could potentially results in visa being issued to some of the applicants who have previously been rejected. However, this would be enabled only when the court decides to waive the stipulated review period of 35 days that is normally available after the verdict. The above verdict also has potential negative impact as the visa regime should not be abused by immigrants so as to settle in Australia as this may have adverse implications for the country going forward. As a result of the changes in the interpretation of subclause 820.211(2)(d)(ii), it may be possible for any criminal or person involved in illegal activities to obtain a visa citing relationship with an Australian citizen. Hence, it is imperative that the flexibility in law should be applied with adequate prudence so that only the genuine cases are able to benefit from this and the interests of the nation are not jeopardised. 2. The initial application for issuing a partner visa was not accepted as the interpretation of compelling circumstances was limited to the application time only and not after that. The rejection of visa application was in line with the substantive cannons of construction. This principle states that in the absence of any specific rules to allow for discretion, each of the case must be dealt equally with the same rules. With regards to bringing alteration in the existing statute, certain statutory principles were adhered. A particular principle that has been used is the implication principle. This principle is applied when the intent of the lawmaker is to being modification or alteration in some selected provisions of the statute law. Thus, these alterations pave way for a new version and interpretation of law which tends to supersede the existing interpretation of the modified law. For example, the modification of the interpretation of the compelling circumstances subclause would prevail and hence would have a significant impact whose scope would be greater than the Waensila case only. Another statutory principle that was adhered by the court was that of remedial statues. As per this principle, the modifications in existing law are done when the law tends to be highly general or when the application of law becomes difficult. With regards to the current sub-clause, difficulty was not an issue but it was very general and thus demanded changes which were brought by the Federal Court. It was opined by the jury in an unanimous manner that circumstances after case application could be potentially significant in the final outcome of the case and hence these need to be accounted for. Besides, there was lack of clarity on the usage of compelling circumstances with a say given to the minister which complicated manners and also led to inconsistent decision making and therefore reinterpretation of the compelling circumstances would go a long way in ensuring uniform decision making while avoiding any undue confusion or interference. References Arch, M, Schedule 3 Case Everyone Needs to Know!!!, [website], 2016a, https://migrationalliance.com.au/immigration-daily-news/entry/invalid-post-5.html (accessed 29 July, 2016) Arch, M, Schedule 3: Case From Federal Circuit Inconsistent With Waensila, Handed Down Same Day!, [website], 2016b, https://migrationalliance.com.au/immigration-daily-news/entry/2016-03-schedule-3-case-from-federal-circuit-inconsistent-with-waensila-handed-down-same-day.html (accessed 29 July, 2016) Dharmananda, J and P. Lane, Teaching Statutory Interpretation in Australia: Whats Next?, Statute Law Review, vol. 37, no.2, 2016, pp. 37-41 EthosMigration, New Federal Court Decision on Schedule 3 and its Effect on Visa Applications, [website], nd, https://ethosmigration.com.au/new-federal-court-decision-on-schedule-3-and-its-effect-on-visa-applications/ (accessed 29 July, 2016) MIA, Great news for Partner applicants who applied as unlawful (did not hold a substantive visa), [website], 2016, https://www.iscah.com/great-news-for-partner-applicants-who-applied-as-unlawful-did-not-hold-a-substantive-visa/ (accessed 29 July, 2016) Michalopoulos, P, New Federal Court Decision on Schedule 3 and its Effect on Visa Applications, [website], 2016, https://www.linkedin.com/pulse/new-federal-court-decision-schedule-3-its-effect-visa-michalopoulos (accessed 29 July, 2016) Tan, J, WAENSILAS Case COMPELS Changes to Department of Immigrations Guidlines on Schedule 3 Criteria, [website], 2016, https://immigrationlawyer.com.au/waensilas-case-compels-changes-to-department-of-immigrations-guidelines-on-schedule-3-criteria.html (accessed 29 July, 2016) Vermeule, A, 'Conventions of Agency Independence', Columbia Law Review, vol. 113, no.5, 2011, pp. 12-15