Australian Immigration Law: Congressional Drafting

An Australian court case named Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 has created a new pathway for all the individuals who have applied for partner visa under sub class 820 in Australia. The judgment of the said case has over ruled the decision of the lower courts and changed the manner in which Schedule 3 waiver in relation to partner visa under sub class 820 was interpreted (Hamano, 2010).

Summary Facts

• In the said case, the appellant had Thailand citizenship who married a woman of Australian nationality on 5 September 2010.
  
  
• The appellant made an application for a permanent and temporary partner visa under sub class 820 and 801 on 10 September 2010 based on his marriage with an Australian citizen.
  
  
• The appellant had arrive in Australia on visitor’s visa which was expired long back before application of partner vi
  
  sa making him have no substantive visa at time of partner visa application.
  
  
• His application for partner visa was rejected by the Immigration officer stating the reason failure of compliance with requirements states under Clause 820.211(2) (d)(ii) of the Migration Regulations 1994 (Waensila v Minister for Immigration and Border Protection, 2016).
  
  
• The appellant brought bout an action against the order passed by the immigration officer but the Tribunal agreed with the decision of the immigration officer.
  
  
• The appellant eventually opted for judicial review arguing that the decision of the Tribunal in Federal Circuit Court of Australia was unsatisfactory however, the same order was upheld.
  
  
• Lastly, the said appeal was filed by the appellant in the Federal Court of Australia (Migration Act 1958, 2004)

Reason for Judgment of the Federal Court of Australia

The said case is a classic example of how judges in the Court interpret the wordings of the section to derive the true intent of the Legislation while drafting the same. In the current case, the Clause 820.211(2) (d) (ii) of the Migration Regulations 1994 was interpreted to arrive at the judgment. The Clause 820.211(2) (d) (ii) of the Migration Regulations 1994 talks about the conditions 3001, 3003 and 3004 mentioned in Schedule 3 have to be satisfied by an applicant of partner visa unless he can prove to the Ministry that certain compelling and compassionate reasons were present at the time of partner visa application which precluded he applicant to comply with the conditions (Odhiambo-Abuya, 2003). The primary feature of this section is that it authorizes the Ministry with huge discretionary powers in determining the validity of compelling and compassionate reasons.

The appellant in this case failed to fulfill the requirements stated under Clause 820.211(2) (d) (ii) of the Migration Regulations 1994; however he provided various compelling situations that prohibited his compliance of requirements. These compelling reasons are as follows:-

• The Appellant was a Muslim citizen who feared being victimized and abused if he returned to his country
• The Appellant feared that his relationship with wife would be adversely affected
• The appellant believed that his reunion with his wife would never be possible if he returned back to his community in Thailand
• Additionally, the appellant’s wife was suffering from many diseases and require he appellant for care
• The appellant was supporting his wife financially (Waensila v Minister for Immigration and Border Protection, 2016)

Judgment passed by Lower Court

The Judge of the Lower Court interpreted Clause 820.211(2)(d)(ii) of the Migration Regulations 1994 in a manner which gave the wording of the section “at the time of the application” great important which require compelling situations to exist at time of partner visa application. However, in the case of appellant, compelling reasons arose after the partner visa was applied; thus, appellant’s partner visa application was rejected.

Judgment passed by the Federal Court

The Federal Court passed its judgment on the said matter on March 11, 2016 where it reserved the order of the Lower Court. The judge of the Federal Court expressed that the discretionary powers provided to the Ministry to determine the validity of compelling situations cannot be limited to a time frame of the said compelling situation existing only at the time the visa application was made. Thus, the judges of the Federal Court interpreted the wordings of the Clause 820.211(2)(d)(ii) of the Migration Regulations 1994 relying on the judgment of Berenguel v Minister for Immigration and Citizenship that stated heading of any section are not necessarily related to the content or the meaning of the section. Thus, the heading of any section does not define its meaning completely and thus the time frame for compelling reasons to arise cannot be restricted. Thus, the waiver option available for applicant of partner visa can rely on compelling conditions which exist after visa application for being granted appropriate waiver (Vrachnas et al., 2011).

The judges of the Federal Court also referred to section 65 of the Migration Act 1958 which authorizes the immigration Ministry, the authority to grant or reject visas in Australia. Thus, the time frame to determine whether any visa application satisfies all the conditions mentioned in Migration Act 1958 and Migration Regulations 1994 should be the time when the decision of the status of the visa is determined. Additionally, Section 55 of the Migration Act 1958 states that the Ministry should use its discretionary power while deciding whether to grant or reject a visa application in Australia after reviewing all the important issues and information in each visa application.

Thus, the said case is an ideal example of the fact that judges in the Court interpret the sections and clauses in Australian law. After the judgment of the said case, it is very clear that Immigration Ministry cannot refuse any partner visa application if the applicant can validly prove that certain compelling situation arose which prohibited him from complying with Clause 820.211(2)(d)(ii) of the Migration Regulations 1994. The said compelling reasons can even arise after the partner visa application is made and the requirement of compelling reasons to exist at time of visa application was considered invalid. Thus, with the said decision, the Courts proved that they interpret sections and clauses with the intent to advance the intent of the Australian Legislation while drafting the said clause or section.

2:

In the judgment of Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, the judges of the Federal Court used Golden Rule of Interpretation of Statutes. The Golden Rule of Interpretation is used where a statute is absurd or unclear; therefore the judges apply an approach where they deviate from the usual meaning of a section or a statute in order to clarify the absurdity in the statute or a section. Therefore, using Golden Rule of Interpretation of Statue, a judge is permitted to alter the meaning of a section to get rid of an illogic or absurd result it creates. The primary object on which the Golden Rule of Interpretation of Statue stands is to promote the intention of the Legislation (Gluck & Bressman, 2013).

Under the said rule, the primary motive of the Judges is to advance the meaning of a statute which promotes the intention which the Legislation had while drafting the same. In the present case, the judges of the Federal Court interpreted Clause 820.211(2)(d)(ii) of the Migration Regulations 1994 after analysis the intention of the Legislation while drafting the same (Malleson & Moules, 2010). The intention of the Legislation in authorizing the Ministry with discretionary powers to either grant or reject partner visa after considering validity of compelling reasons for to reduce the hardship faced by the applicants of partner visa, therefore, restricting the time for the said compelling reasons to be considered would defect the intention of the Legislation. Therefore, to avoid the confusion which the wording “at the time of application” in the clause was bringing, the said wording was interpreted in a broader manner with the help of the Golden Rule of Interpretation of Statute to promote the intention of the Legisation while drafting the same (Bressman & Gluck, 2014).

Reference List

Bressman, L. S., & Gluck, A. R. (2014). Statutory Interpretation from the inside-an empirical study of congressional drafting, delegation, and the canons: Part II. Stan. L. Rev., 66, 725.

Gluck, A. R., & Bressman, L. S. (2013). Statutory Interpretation from the Inside--An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I. Delegation and the Canons: Part I (April 4, 2013), 65.

Hamano, T.(20103) Marriage migration to Australia.

Malleson, K., & Moules, R. (2010). The legal system (Vol. 2). Oxford University Press.

Migration Act 1958. (2004). Canberra.

Odhiambo-Abuya, E. (2003). Pain of Love: Spousal Immigration and Domestic Violence in Australia-A Regime in Chaos, The. Pac. Rim L. & Pol'y J., 12, 673.

Vrachnas, J., Bagaric, M., Dimopoulos, P., & Pathinayake, A. (2011).Migration and refugee law: Principles and practice in Australia. Cambridge University Press.

Waensila v Minister for Immigration and Border Protection, FCAFC 32 (Federal Court of Australia 2016).