Cases:

[1] MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 (9 May 2012) per Bromberg J –whether compelling reasons existed for waiving requisite criteria in cl 820.211(2)(d)(ii)

Applicant could not satisfy criterion 3001 and, accordingly, the issue was whether it was satisfied that there were ‘compelling reasons’ not to apply the criteria.

 

9. Clause 820.211(2)(d)(ii) is in the following terms:

10. That sub-clause is addressing whether there exists a sufficient basis to move the decision-maker to waive what would otherwise be criteria which an applicant for a visa must satisfy. In that context, “compelling reasons” means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria:Paduano v MIMIA [2005] FCA 211 at [39] (Crennan J). The circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v MIMIA [2005] FCAFC 77 at [24] (Tamberlin, Conti and Jacobson JJ).

10. As Whitlam J said in McNamara v MIMIA [2004] FCA 1096 at [10]:

 

[2] Waensila v MIBP [2016] FCAFC 32 (11 March 2016) per DOWSETT, ROBERTSON AND GRIFFITHS JJ

15. The question is… 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…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… 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 flexibilityif 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…Clause 820.211(2)(d)(ii) is an ameliorating provision and it should not…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.