Waensila: The Continuing Power of the Full Court’s Decision

As noted by our corporate sponsor Michael Arch of the Migration Messenger:

Judge Baird of the Federal Circuit Court rules that it is improper for the Tribunal to limit its review to circumstances in existence at the time that a marital relationship is formed

Exactly how broad, and how powerful, are the principles stated in the famous decision of the Full Court in the case of Waensila v Minister for Immigration and Border Protection?

You will recall that in this case, the Full Court made it clear that the interpretation of clause 820.211(2)(d)(ii) that had previously been followed – namely, that in considering whether to exercise the power to grant a waiver not to apply Schedule 3 criteria, the decision-maker (be it the Tribunal or the Department) was confined to circumstances in existence at the time the Partner visa application is lodged – was incorrect. Rather, in Waensila, the Full Court made clear that the circumstances to be considered are all those that are in existence at the time that the decision whether to exercise the waiver power is made – not just those in existence at the time that the application was made.

This section is from VISA’s Corporate Partner the Migration Messenger.

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