Is a Schedule 3 waiver a discretionary power or a state of satisfaction?

The Migration Act and Regulations contain a number of provisions which, broadly speaking, encourage non-citizens in Australia to apply for any further visas before the expiry of their existing substantive visas, and discourage non-citizens from remaining in Australia after the expiry of their substantive visas. In particular, many visas require applicants to satisfy what is known as Schedule 3 criteria, which limit the circumstances in which visas may be granted to applicants who do not hold a substantive visa.

In the context of an application for a partner visa, cl 820.211(2)(d)(ii) requires an applicant to satisfy particular Schedule 3 criteria “unless the Minister is satisfied that there are compelling reasons for not applying those criteria”.

This week, the Full Federal Court published an interesting decision in Singh v Minister for Home Affairs [2020] FCAFC 7 considering cl 820.211(2)(d)(ii). That decision is likely to be cited in future for the proposition that the rights of the child is not a mandatory relevant consideration for decision-makers in deciding whether to waive the Schedule 3 criteria. However, a significant plank of the Court’s reasoning in Singh turns on the view adopted by the Court that the waiver provision in cl 820.211(2)(d)(ii) is simply a criterion requiring the decision-maker to reach a state of satisfaction or non-satisfaction, not a discretionary power (see eg at [61]-[62], [73] per Derrington J, Logan and Reeves JJ agreeing).

Perhaps surprisingly, it seems the Court in Singh was not referred to Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, arguably the leading authority on the interpretation of cl 820.211(2)(d)(ii). The Full Federal Court in Waensila explicitly rejected the submission that the waiver provision in cl 820.211(2)(d)(ii) was merely a criterion requiring satisfaction or non-satisfaction; rather, the Court characterised it as a power to dispense with the application of the Schedule 3 criteria, with Robertson J in fact characterising it as a discretionary power (see eg [2] per Dowsett J, [11], [15]-[21] per Robertson J, [51]-[52] per Griffiths J).

The characterisation of the nature of the waiver provision in cl 820.211(2)(d)(ii) is important because, as the Court in Singh highlighted, different principles may apply depending on whether the Court is conducting judicial review of a state of mind or an exercise of power. Unfortunately, we now have two authorities which appear to conflict on that characterisation. How the tension between the two is to be resolved is likely to be a matter for future litigation.