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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
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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.
