Subclause 10.1 omits paragraph 820.211(2)(d) of the Migration Regulations andsubstitutes a new paragraph which includes a waiver provision regarding theSchedule 3 requirements. The Schedule 3 requirements impose certain restrictions onunlawful non-citizens who apply onshore for residence on spouse grounds. Theintroduction of a waiver provision recognises the hardship that can result if anunlawful non-citizen wishing to remain in Australia on spouse grounds is obliged toleave Australia and apply from overseas. The waiver will provide greater flexibilityfor 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-standingrelationship which has been in existence for two years or longer.In these circumstances, waiver may be justified by the hardship which could resultif the Schedule 3 criteria were not waived.48 The Minister’s submissions were broadly as follows:(a) Berenguel involved the proper construction of other provisions in the Regulations andreflects the application of settled principles of statutory construction to its ownparticular facts.(b) Clause 820.211 relevantly imposes a single criterion, namely that contained incl 820.211(1)(b).(c) The terms of the heading to cl 820.21 are important to the task of construction of thewhole clause.(d) Criterion 3001 refers explicitly to the timing of the visa application “and so isnecessarily satisfied, or not, when the application is made”.(e) As part of the relevant context, cl 820.22 is expressly distinguished from cl 820.21because the former provision specifies criteria “to be met at the time of decision”.One of the alternative requirements in cl 820.221(1) is that the partner visa applicant“continues to meet the requirements of the relevant sub-clause in cl 820.211”. A- 15 -requirement for a specified criterion to continue to be met makes no sense if thatcriterion itself requires satisfaction at the time of decision. This gives rise to an“inescapable inference” that cl 820.211 is to be met at the time of application, as itsheading confirms.(f) Section 55 of the Act does not assist the relevant task of construing the criteriathemselves.(g) Significantly, the waiver provision is not “carved out” from the remainder of therelevant criterion and, by force of reg 2.03, the entire body of the criteria in subclass820 is relevant criteria to be met for a partner visa to be granted.(h) The extracts from the Explanatory Statement relied upon by the appellant do notprovide any clear support for his construction. In Boakye-Danquah, Wilcox Jregarded that material as strongly supporting the contrary view. The Ministeraccepted, however, that the material indicated that the mischief to which the waiverprovision was directed was the hardship that could be caused by a partner visaapplicant having to leave Australia in order to apply for such a visa from overseas, butadded that that situation obtains at the time of application.