Australian Migration Law And Practice: Immigration And Border

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Australian Migration Law And Practice: Immigration And Border

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Australian Migration Law And Practice: Immigration And Border

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Question:
Discuss about the Report for Australian Migration Law and Practice of Immigration and Border.

Answer:

1.
Waensila v Minister for Immigration and Border Protection is an important judgment relating to partner visa in Australia. The previous judgments relating to partner visas have been overruled by this judgment and a revolution has taken place in the way partner visas are assessment in Australia (Bernard et al., 2016)
Facts of the case are as follows:

The appellant is a Muslim citizen of Thailand.
On September 5, 2010 he got married to an Australian citizen.
On September, 2010, an application for temporary and permanent visas under subclasses 820 and 801 was lodged by the appellant.
The appellant had no substantive visa when he applied for the visa.
The delegate refused to grant the visa because the appellant was not satisfying the criteria which are laid down under Clause 820.211(2)(d)(ii) of the Migration Regulations 1994
The appellant appealed against the decision of the delegate in the Tribunal.
The tribunal did not decide the case in favor of the appellant.
The appellant further filed an application for judicial review against the decision in the Federal Circuit Court of Australia (FCCA)
The case was again decided against the appellant in the FCCA
The present appeal has been filed by the appellant against the decision of FCCA in the Federal Court of Australia (Biggs et al., 2013).

Arguments involved in the case
Under the provisions laid down under Clause 820.211(2)(d)(ii) of the Migration Regulations 1994, if a person does not hold a substantive visa and he applies for a partner visa, then the criteria 3001, 3003 and 3004 as laid down under Schedule 3 of the Regulations need to be satisfied buy the applicant at the time when then application is being filed by the applicant. However, if the applicant can show to the Minister that some compelling reasons exist, then such criteria may be dispensed with by the Minister (Walsh, 2014)
In the instant case, the compelling reasons did not exist at the time when the application was filed. But the applicant contended that certain compelling reasons emerged after the application was filed. Such compelling reasons are as follows:

The applicant is a Thai citizen and it is not safe for him to return to Thailand;
If he returns to Thailand, he would not be able to reunite with his wife;
His wife is not in good health and needs his support
His wife is also dependent on him for financial purposes.

Lower Courts’ decisions
According to the lower courts, it was necessary for granting the partner visa to the applicant that the compelling reasons existed at the time when the applicant submitted the visa application. The words, “at the time of application”, which were contained in the heading of Clause 820.21, were relied upon by the lower courts (Freckelton, 2015).

Federal Court’s judgment
The decision of FCCA was reversed by the Federal Court of Australia. The Federal Court relied on the judgment made in Berenguel v Minister for Immigration and Citizenship (2010), in which it was held that it is not necessary that the heading should be connected to the terms of a provision. According to the Federal Court, the power of the Minister to waive the conditions specified under Schedule 3 is not a criterion in itself and the Minister can exercise this power even if the compelling reasons emerge after a visa application has been filed (L’Espérance, 2012).
The Court also relied on Section 65 of the Migration Act, 1958 for interpreting provisions of the Migration Regulation 1994. According to Section 65 a Minister may determine whether to grant a visa or refuse to grant a visa at the time of a making a decision and not at the time when the application is filed. Sec 55 also provides that all relevant information are needed to be considered by the Minister before a making a decision of granting or refusing to grant a visa (Mitchell, 2013)
The decision has eradicated the hurdles which are faced by persons while applying for partner visas in Australia. The decision has prevented the appellant from filing a fresh visa application after returning back to Thailand. It has also prevented the deterioration of the relation of the applicant with his wife. Thus, floodgates for claims of partner visa in Australia have been opened by this judgment (Walsh, 2014).
2. In this judgment, the golden rule of interpretation of statute has been utilised by the Federal Court. According to the golden rule, if the meaning of the words used in a statute differs with the legislature’s intention and give rise to some absurdity or repugnancy, then such words should be modified to avoid such absurdity or repugnancy (Friend, 2012).
In the instant case, the legislature intended to give flexibility to the Minister for the purpose of determining whether compelling reasons exist or not with respect to granting or refusing to grant a visa. The legislature also intended to eradicate the hardship which the applicants may face while applying for visas. If the statute is interpreted in a way so as to limit the circumstances in which the Minister is to exercise his discretion, then the intention of the legislature would be defeated. Thus, the Federal Court adopted the golden rule of interpretation of statute and gave greater discretionary power to the Minister in assessing a visa application. The Court thus avoided such interpretation which would give narrow meaning to the statute. The heading of Clause 820.21 has led to some absurdity, the removal of which was necessary to give effect to the actual purpose of the legislature (Mitchell, 2013)

References:
Bernard, A., Bell, M., & Charles-Edwards, E. (2016). Internal migration age patterns and the transition to adulthood: Australia and great britain compared. Journal of Population Research, 33(2), 123-146. doi:10.1007/s12546-016-9157-0
Biggs, S., Fredvang, M., & Haapala, I. (2013). Not in australia. migration, work and age discrimination: Age, migration and australia. Australasian Journal on Ageing, 32(2), 125-129. doi:10.1111/j.1741-6612.2012.00650.x
Freckelton, A. (2015). Administrative decision-making in australian migration law. S.l.: s.n.
Hu, R. (2015). Competitiveness, migration, and mobility in the global city: Insights from sydney, australia. Economies, 3(1), 37-54. doi:10.3390/economies3010037
L’Espérance, A. (2012). Mary crock et laurie berg immigration, refugees and forced migration: Law, policy and practice in australia. annandale (NSW), federation press, 2011, 698 p. Canadian Journal of Law and Society, 27(2), 282-286. doi:10.1017/S082932010000079X
Mitchell, T. (2003;2013;). Migration, memory and hong kong as a ‘space of transit’ in clara law’s autumn moon [film]. Cultural Studies Review, 9(1), 139-158. doi:10.5130/csr.v9i1.3589
Friend, L. (2012). Ethical decision making in the emergency department: The golden rule. Journal of Emergency Nursing: JEN : Official Publication of the Emergency Department Nurses Association, 38(3), 251-253. doi:10.1016/j.jen.2010.12.012
Walsh, J. (2014). From nations of immigrants to states of transience: Temporary migration in canada and australia. International Sociology, 29(6), 584-606. doi:10.1177/0268580914538682

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