FEDERAL COURT OF AUSTRALIA

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

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed, with costs.

2.    Orders 2 and 3 made in the Federal Circuit Court of Australia on 21 August 2015 be set aside and, in substitution for those orders, order:

(a)    the Tribunal’s decision dated 14 April 2015 be set aside;

(b)    the matter be remitted to the Administrative Appeals Tribunal to be determined in accordance with law; and

(c)    the Minister pay the appellant’s costs of the application in the Federal Circuit Court of Australia.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWSETT J:

1    I have had the benefit of reading the separate reasons prepared by Robertson J and by Griffiths J.

2    I agree that the present problem is resolved by recognizing that cl 820.211 of the Migration Regulations 1994 (Cth), read with the heading, requires that, where applicable, criteria 3001, 3002 and 3003 must be satisfied as at the time of application. However that proposition says nothing about the Minister’s power to dispense with the application of those criteria or the time at which that power may be exercised. As demonstrated by Robertson and Griffiths JJ, the power is designed to provide flexibility in the operation of the legislative and regulatory scheme. That flexibility ought not be limited by limiting the circumstances which may be relevant to the exercise of the power, at least in the absence of any statutory or regulatory requirement.

3    I agree with the orders proposed by the other members of the Court.

Associate:

Dated:    11 March 2016

REASONS FOR JUDGMENT

ROBERTSON J:

4    I have had the advantage of reading in draft the judgment of Griffiths J and I therefore do not need to set out the facts and the relevant statutory provisions.

5    The question in this appeal is whether the then Migration Review Tribunal, in its decision made on 14 April 2015 affirming the decision not to grant the appellant a Partner (Temporary) (Class UK) visa, made a jurisdictional error in excluding from its consideration of “compelling reasons” for the purposes of cl 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) circumstances not present at the time of application. The application for the visa was made on 10 September 2010.

6    It was common ground that the appellant did not satisfy Schedule 3 criteria 3001, at least. It was therefore dispositive that the Minister, or the Tribunal exercising the Minister’s discretion, was satisfied that there were “compelling reasons” for not applying the criteria, as stated in cl 820.211(2)(d)(ii).

7    The appellant’s submissions were in effect that the decision in Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438; 116 FCR 557 was wrongly decided or distinguishable and that the subsequent decision of the High Court in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417, or the principles or reasoning in Berenguel, should apply so that it did not follow that the criterion could only be satisfied by evidence provided to the Minister as at the time of submitting the application. The appellant also referred to Bains v Minister for Immigration and Citizenship [2012] FCA 649; 205 FCR 217.

8    The Minister submitted that Berenguel involved a different regulation, using different statutory language and different factual circumstances – whether an applicant had competent English. The Minister also submitted that the heading to cl 820.21 was an important indication of legislative intention since it was part of the regulations. The Minister further submitted that it was easy to see why, as a matter of policy, the regulations would require an applicant for a spouse visa to show that the relationship upon which he or she relied was already in existence at or before the time of application. This supported the view that cl 820.211(1)(b) was intended to be a criterion to be satisfied at the time of application. Further, cl 3001 in Schedule 3 spoke explicitly to the timing of the visa application and so was necessarily satisfied, or not, when the application was made. The Minister also referred to cl 820.221(1) and submitted that a requirement for a specified criterion to continue to be met would make no sense at all if that criterion itself required satisfaction at the time of decision. The Minister submitted that the “waiver” provision did not operate at a different point in time to the remainder of the clause. The Minister submitted the Explanatory Statement did not provide any clear support for the appellant’s construction. Indeed, the Minister submitted, the Explanatory Statement indicated that the mischief at which the “waiver” provision was directed was the hardship that could be caused by a potential spouse visa applicant needing to leave Australia in order to apply – a situation that, plainly enough, obtained at the time of application.

9    I turn to consider these competing submissions. I shall not refer to cl 820.211(2)(d)(ii) as a waiver provision as that nomenclature seems to me to be a potential distraction. The question is what material the Minister may take into account when deciding an application for a subclass 820 visa. It is common ground that the cl 820.211(2)(d)(ii) question is addressed at the time the decision is made.

10    It is also common ground that the visa applicant must satisfy the Schedule 3 criteria 3001, 3003 and 3004 at the time of application, subject to the Minister’s discretion where the Minister is satisfied that there are compelling reasons for not applying those criteria.

11    In my opinion, 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.

12    Boakye-Danquah requires analysis. In that case Wilcox J rejected the Minister’s submission that the circumstances to be taken into account in assessing “compelling reasons” within cl 820.211(2)(d)(ii) included circumstances existing at the time of decision as well as at the time of application. Justice Wilcox held, at [37] and [39], that the flaw in the Tribunal’s reasoning in that case was that it applied the requirement of compelling reasons to the circumstances extant at the time of decision, rather than to those prevailing at the time of application: it should have asked whether there were such reasons arising out of the circumstances at the time of application. The reasoning, at [33], turned on the background supplied by the Explanatory Statement and the proposition that cl 820.211 was concerned with the circumstances in which an application is made: “There was obviously no intention that an applicant be required also to demonstrate compelling reasons arising out of the circumstances applying at the date of decision.” Justice Wilcox also reasoned, at [35], that in the Explanatory Statement the Minister was addressing circumstances applying at the time of application, not those existing at the time of decision. With respect, I gain little assistance from the detail of the Explanatory Statement.

13    The Explanatory Statement on which Wilcox J relied was, relevantly, in the following terms:

Subclause 10.1 omits paragraph 820.211(2)(d) of the Migration Regulations and substitutes a new paragraph which includes a waiver provision regarding the Schedule 3 requirements. The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.

It is expected that the waiver will be exercised only where there are reasons of a “strongly compassionate” nature such as:

-    where there are Australian-citizen children from the relationship; or

-    where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer.

In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.

14    As explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 45, in the ordinary case a decision-maker is required to take into account all the information before him or her:

It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. 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.

15    The question is, therefore, 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, as the present appeal demonstrates, 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” (emphasis added) 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 [26] 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 [24].

21    I also add, conformably with the reasoning of the High Court in Berenguel at [26], 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, with respect, I would not follow Boakye-Danquah and it should be overruled.

23    I should say, for completeness, that I do not find assistance in Bains at [23]-[24] on which the appellant relied.

24    I agree with the orders proposed by Griffiths J.

Associate:

Dated:    11 March 2016

REASONS FOR JUDGMENT

GRIFFITHS J:

25    The central issue in the appeal concerns the proper construction of provisions relating to an application for a Partner (Temporary) (Class UK) visa (partner visa). In particular, the question is whether, in determining whether or not the Minister was satisfied that there were “compelling reasons” for not applying certain criteria for a partner visa which have to be satisfied at the time of application, the Minister was confined to considering only “compelling reasons” which existed at the time of the application. If that is the proper construction, the Minister (or his or her delegate) was prevented from having regard to any “compelling reasons” which related to events or circumstances which occurred after the partner visa application was made. This was the construction which was adopted and applied by the delegate, the Migration Review Tribunal (Tribunal) and the Federal Circuit Court of Australia (FCCA).

26    For the reasons which follow, I respectfully disagree that the relevant provisions are properly construed that way. I should add that I have had the benefit of reviewing the draft reasons for judgment of Robertson J. I substantially agree with his Honour’s reasons although there are some differences in the approaches we take and the emphasis we place on some matters in arriving at the same conclusion concerning the proper construction of the relevant provisions.

27    It is convenient to summarise the primary background facts before setting out the relevant statutory and regulatory framework.

Summary of background facts

28    On 10 September 2010, the appellant applied for temporary and permanent partner visas (Parts 820 and 801) on the basis of his marital relationship. Under the regulations, an application for a Class UK partner visa had to be made in Australia and when the visa applicant was in Australia (see cl 1214C(3) of the Migration Regulations 1994 (Cth) (the Regulations)). The appellant’s wife, who was an Australian citizen, was his sponsor. The couple had married on 5 September 2010. The appellant, who is a citizen of Thailand, initially arrived in Australia on a visitor visa in November 2007. He subsequently applied unsuccessfully for a protection visa. His challenges to that adverse decision culminated in proceedings in the High Court, which were determined against him in October 2009. As at 10 September 2010, the appellant did not hold any substantive visa.

29    At the material times, the relevant criteria governing the grant of a partner visa were set out in Pt 820 of Sch 2 to the Regulations. The delegate refused the partner visa application because he found that the appellant did not satisfy cl 820.211(2)(d)(ii) of the Regulations (which is set out in [40] below). The effect of this provision, which formed part of the criteria which had to be satisfied at the time of application, required the appellant, as a person who did not hold a substantive visa at the time he applied for a partner visa, to satisfy Sch 3 criteria 3001, 3003 and 3004, unless the Minister was satisfied that there were compelling reasons for not applying those criteria. The relevant terms of these criteria are set out in [42], [44] and [45] below.

30    The only relevant issue was whether the appellant satisfied criterion 3001, which required that his partner visa application must have been lodged within 28 days of the “relevant day” (it was common ground that, in the appellant’s case, the “relevant day” was 11 February 2008, which was the date when the appellant’s visitor visa expired). The appellant could not meet this criterion, because, as noted above, his partner visa application was lodged on 10 September 2010, which was well outside the 28 day period which commenced on 11 February 2008.

31    It is relevant to the task of construction to note, however, that if the Minister was satisfied that the appellant satisfied criterion 3001, he would also have had to have been satisfied that the appellant satisfied either criterion 3003 or criterion 3004 (which were alternatives). For reasons which will be given below, this is relevant to the task of construction.

32    The appellant submitted to both the delegate and the Tribunal that there were “compelling reasons” for waiving the requirement that he meet the relevant Sch 3 criteria (which would mean that he would not have to leave Australia in order to reapply for the visa), namely:

(a)    his fear of persecution to lodge a fresh application if he were to return to Thailand as a Thai Muslim citizen;

(b)    his fear that he would never be reunited with his wife if he returned to Thailand;

(c)    his concern that the long period of separation from his wife would affect their relationship;

(d)    his wife suffered from allergies in her eyes, difficulty sleeping, blackouts, epilepsy, diabetes, arthritis in her back, cholesterol and was under constant medication for various illnesses and relied on the appellant for continuing care; and

(e)    his wife was not working and was financially dependent on him.

33    Both the delegate and the Tribunal took the view that, having regard to Wilcox J’s decision in Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438; (2002) 116 FCR 557 (Boakye-Danquah), the “compelling reasons” for not applying the Sch 3 criteria must be considered only in relation to circumstances which existed at the time of application and not subsequently.

34    The Tribunal concluded that the circumstances described in sub-paragraphs (a), (b), (d) and (e) in [32] above were circumstances which were not present at the time of the partner visa application and could not, therefore, constitute “compelling reasons” for not applying the Sch 3 criteria. In the case of subpara (c), the Tribunal concluded that the appellant’s concern that a long period of separation from his wife would affect their relationship did not constitute a compelling reason, primarily because the Department had advised the appellant that there would not be an extensive processing time for a partner visa lodged by him in Thailand. Further, and in any event, the separation from his wife for the purpose of making an off-shore partner visa application did not constitute “emotional hardship” to a level which made that matter a “compelling reason” for not applying the relevant criterion.

35    The appellant sought judicial review of the Tribunal’s decision in the FCCA (see Waensila v Minister for Immigration and Border Protection [2015] FCCA 2276). His grounds of review included a contention that, because of the Tribunal’s misconstruction of cl 820.211(2)(d)(ii), the Tribunal had failed to take into account relevant matters which he had put forward as constituting “compelling reasons” for waiving the relevant criterion, namely matters which post-dated the lodgement of his application. It might be noted that it took more than three years for the delegate to determine his application.

36    The primary judge rejected that argument and held that the Tribunal had correctly addressed itself to the question of whether the compelling circumstances relied upon by the appellant existed at the time of application. In his ex tempore reasons for judgment, the primary judge stated:

11    I reject the argument of the applicant that the Tribunal erred in adopting that construction. I do however accept Mr Kumar's contention that it is not by reason of the decision in Boakye-Danquah that one finds a principle determinative of the construction issue raised in respect of cl.820.211(2)(d). That construction question turns upon the language used and the context of the provision in Schedule 2, taking into account the headings and the work done by the respective provision (sic) so as to give a harmonious reading.

12    By focusing upon the correct outcome as to whether the criteria were met at the time of application, the Tribunal adopted the correct construction of the regulation and there is no jurisdictional error of the kind advanced in ground 1…

The statutory and regulatory framework

37    At the relevant time, under s 29(1)(b) of the Migration Act 1958 (Cth) (the Act), the Minister was empowered to grant a non-citizen a visa to remain in Australia. Section 31 of the Act provided for prescribed classes of visas and authorised the making of regulations prescribing criteria for a visa or visas of a specified class. Section 54 required the Minister, in deciding whether or not to grant a visa, to have regard to all of the information in the application (which included information set out in the application or any document attached to the application when it was made or any information given under s 55). Section 55 provided:

(1)    Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.

(2)    Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.

38    Section 65 required that if, after considering a valid application for a visa, the Minister was satisfied inter alia that relevant criteria prescribed in the Act or Regulations had been satisfied, the Minister must grant the visa. If the Minister was not so satisfied the visa must be refused. Section 65 is important to the task of construing the relevant provisions in that it established that the relevant time at which a determination was to be made by the Minister (or his or her delegate) as to whether an applicant with a valid application for a visa satisfied the relevant criteria for the grant of that visa is the time when the decision is made whether or not to grant or refuse the visa (and not, for example, at some other earlier time, such as at the time the visa application was made). At the relevant time, s 65 provided:

Decision to grant or refuse to grant visa

(1)    After considering a valid application for a visa, the Minister:

(a)    if satisfied that:

(i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

Note:    See also section 195A, under which the Minister has a non‑compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister’s power under that section.

(2)    To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).

39    At the relevant time, reg 2.01 of the Regulations provided that, for the purposes of s 31 of the Act, the prescribed classes of visa were such classes as were set out in the respective items in Sch 1 to the Regulations (other than those created by the Act itself). Regulation 2.03 provided that, for the purposes of s 31(3), the prescribed criteria for the grant to a person of a visa of a particular class included the primary criteria set out in the relevant part of Sch 2 of the Regulations. Regulation 2.03(2) relevantly provided that, if a criterion in Sch 2 referred to a criterion in Sch 3, a criterion so referred to must be satisfied by an applicant as if it were set out at length in the first-mentioned criterion.

40    Part 8.20 of the Regulations contained provisions concerning partner visas. The primary criteria for the particular partner visa were set out in cl 820.2. The criteria which had to be satisfied at the time the partnership visa application was made were set out in cl 820.21, which relevantly provided:

820.21 – Criteria to be satisfied at time of application

820.211

(1)    The applicant:

(a)    …;

(b)    meets the requirements of subclause (2), (5), (6), (7), (8) or (9).

(2)    An applicant meets the requirements of this subclause if:

(a)    …

(c)    …

(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.

41    The terms of the heading to cl 820.21 are to be noted. The effect of s 13(1)(a) of the Legislation Act 2003 (Cth) is that, where enabling legislation empowers the making of a legislative instrument, then unless the contrary intention appears, the Acts Interpretation Act 1901 (Cth) applies to the instrument as if the instrument were an Act and each provision thereof were a section of an Act. The Regulations are a legislative instrument and s 13(1)(a) applies to them. Accordingly, the heading to cl 820.21 is taken to be “part of” of the Regulations and is relevant to the task of construction (as per s 13(2)(d) of the Acts Interpretation Act 1901 (Cth)).

42    At the relevant time, criterion 3001 was relevantly as follows:

Schedule 3 – Additional criteria applicable to unlawful non citizens and certain bridging visa holders

(regulation 1.03)

3001    (1)    The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

(2)    …

43    It might be noted that the reference to reg 1.03 immediately below the heading to Sch 3 was a reference to the provision which contained definitions, none of which was relevant to criterion 3001(1).

44    As noted above, it was common ground that the decision-maker needed to be satisfied that the appellant met not only criterion 3001 but also either criterion 3003 or criterion 3004 (which were alternatives). It is desirable to set out the relevant terms of these criteria as in force at the relevant time (emphasis added):

3003    If:

(a)    the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

(b)    on 31 August 1994, the applicant was either:

(i)    an illegal entrant; or

(ii)    the holder of an entry permit that was not valid beyond 31 August 1994;

the Minister is satisfied that:

(c)    the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b) (ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant’s control; and

(d)    there are compelling reasons for granting the visa; and

(e)-(h)    …

45    At the relevant time, criterion 3004 was relevantly in the following terms (emphasis added):

3004    If the applicant:

(a)    ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

(b)    entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

the Minister is satisfied that:

(c)    the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and

(d)    there are compelling reasons for granting the visa; and

(e)-(h)    …

46    It was common ground that, if the appellant had satisfied criterion 3001, he would also have had to satisfy criterion 3004 (because criterion 3003 was inapplicable to him having regard to paragraph (b) of that criterion).

Contentions and resolution of the appeal

47    In support of his construction of the relevant provisions, the appellant relied upon what his counsel described as the “principles” in the High Court’s decision in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 264 ALR 417 (Berenguel). Reliance was also placed on the Explanatory Statement which accompanied the amendment to the Regulations which omitted the previous cl 820.211(2)(d) and substituted the new provision, which included the relevant waiver power (see cl 10 of Sch 2, Pt 820 (Spouse) of the Migration Regulations (Amendment) 1996 No 75 (Cth) (the 1996 amendments)). The appellant submitted that the evident purpose of the amendment is reflected in the following extract from the Explanatory Statement (emphasis added):

Subclause 10.1 omits paragraph 820.211(2)(d) of the Migration Regulations and substitutes a new paragraph which includes a waiver provision regarding the Schedule 3 requirements. The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.

It is expected that the waiver will be exercised only where there are reasons of a “strongly compassionate” nature such as:

-    where there are Australian-citizen children from the relationship; or

-    where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer.

In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.

48    The Minister’s submissions were broadly as follows:

(a)    Berenguel involved the proper construction of other provisions in the Regulations and reflects the application of settled principles of statutory construction to its own particular facts.

(b)    Clause 820.211 relevantly imposes a single criterion, namely that contained in cl 820.211(1)(b).

(c)    The terms of the heading to cl 820.21 are important to the task of construction of the whole clause.

(d)    Criterion 3001 refers explicitly to the timing of the visa application “and so is necessarily satisfied, or not, when the application is made”.

(e)    As part of the relevant context, cl 820.22 is expressly distinguished from cl 820.21 because the former provision specifies criteria “to be met at the time of decision”. One of the alternative requirements in cl 820.221(1) is that the partner visa applicant “continues to meet the requirements of the relevant sub-clause in cl 820.211”. A requirement for a specified criterion to continue to be met makes no sense if that criterion itself requires satisfaction at the time of decision. This gives rise to an “inescapable inference” that cl 820.211 is to be met at the time of application, as its heading confirms.

(f)    Section 55 of the Act does not assist the relevant task of construing the criteria themselves.

(g)    Significantly, the waiver provision is not “carved out” from the remainder of the relevant criterion and, by force of reg 2.03, the entire body of the criteria in subclass 820 is relevant criteria to be met for a partner visa to be granted.

(h)    The extracts from the Explanatory Statement relied upon by the appellant do not provide any clear support for his construction. In Boakye-Danquah, Wilcox J regarded that material as strongly supporting the contrary view. The Minister accepted, however, that the material indicated that the mischief to which the waiver provision was directed was the hardship that could be caused by a partner visa applicant having to leave Australia in order to apply for such a visa from overseas, but added that that situation obtains at the time of application.

49    In my view, while acknowledging that the Minister’s construction of the relevant provisions is reasonably arguable, I consider that the text, context and purpose of the relevant provisions indicate that the appellant’s construction is to be preferred. I shall explain why.

50    The form and structure of cl 820.211 are not straightforward. The heading to the provision informs the proper construction of the clause even though, as was pointed out in Berenguel at [26] in respect to a similarly-worded but different provision in the Regulations, “… the heading does not connect grammatically to its terms”. I understand this to be a reference to the fact that the body of cl 820.211(1) contains no explicit reference to matters which are described as “criteria”.

51    Assuming that the Minister’s submission is correct that cl 820.211(1)(b) is a single criterion, it nevertheless has several constituent elements, namely that, for the criterion to be met, the visa applicant must meet the requirements of sub-clauses (2), (5), (6), (7), (8) or (9). Focussing on sub-clause (2) (which is set out in [40] above), a relevant requirement in the case of an applicant who does not hold a substantive visa (and who does not fit within cl 820.211(2)(d)(i)) is that the applicant satisfies the specified Sch 3 criteria, unless the Minister (or his or her delegate) is satisfied that there are compelling reasons for not applying those Sch 3 criteria. Thus cl 820.211(2)(d) contains a power in the Minister (or his or her delegate) to waive the requirement that the applicant satisfies the specified Sch 3 criteria.

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 are compelling reasons for not applying” the specified Sch 3 criteria (emphasis added). 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. As noted above, however, the Minister submitted that this material did not provide “clear support” for the appellant’s construction. I respectfully disagree.

56    The extracts from the Explanatory Statement (which are set out in [47] 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 (Provisional) (Class UF) 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. They are set out, relevantly in [44]-[45] above. 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.

Conclusion

61    For these reasons, I consider that the appeal should be allowed, with costs. The primary judge’s orders 2 and 3 made on 21 August 2015 should be set aside and, in substitution, orders should be made which:

(a)    set aside the Tribunal’s decision dated 14 April 2015;

(b)    remit the matter to the Administrative Appeals Tribunal to be determined in accordance with law; and

(c)    order the Minister to pay the appellant’s costs of the application in the FCCA.

Associate:

Dated:    11 March 2016