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

FEDERAL COURT OF AUSTRALIA

Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 Appeal from: Waensila v Minister for Immigration & Anor [2015] FCCA 2276

File number: NSD 1088 of 2015

Judges: DOWSETT, ROBERTSON AND GRIFFITHS JJ

Date of judgment: 11 March 2016

Catchwords: MIGRATION – jurisdictional error – correct construction of provisions relating to Partner (Temporary) (Class UK) visa – appeal on whether the appellant met relevant criteria for the grant of a visa – whether Minister was prevented from having regard to any "compelling reasons" which relate to circumstances which occurred after time of application – whether heading of the regulation connects grammatically to its terms – purpose of the waiver provision within the regulations and whether it is itself a criterion

Legislation: Acts Interpretation Act 1901 (Cth), s 13(2)(d) Legislation Act 2003 (Cth), s 13(1)(a) Migration Act 1958 (Cth), ss 29(1)(b), 54, 55, 65 Migration Regulations 1994 (Cth), regs 1.03, 2.01, 2.03, Sch 1, cl 1214C, Sch 2, Pt 820 cll 820.21, 820.211, 820.211(1)(b), 820.211(2), 820.211(2)(d)(ii), 820.22, 820.221, 820.221(1)(a), Sch 3, criteria 3001, 3003 and 3004 Migration Regulations (Amendment) 1996 No 75 (Cth), Explanatory Statement

Cases cited: Bains v Minister for Immigration and Citizenship [2012] FCA 649; (2012) 205 FCR 217 Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 264 ALR 417 Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438; (2002) 116 FCR 557 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24