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.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.