Court Decision and statutory principles of Judges

CASE KARAN V MINISTER FOR IMMIGRATION AND BORDER PROTECTION
[2017] FCA 872 (2 AUGUST 2017).
The paper analyses reasons for the Court of appeal decision and the statutory principles
that Justice Siopsis adopted in making his determination in the case of Karani v Minister which
was about immigration and Boarder Protection.1 The issue that judges attempted to answer in the
case was whether the application for waiver of conditions under section 41(3).2 by the appellant
could be served with justice if the application was accepted or declined. Section 41(2A) provides
a leeway for foreigners in Australia to apply to the Minister to waive the ‘No Further Stay
Condition3’. The appellant’s application to the Ministry suffered a setback by the delegate. He
referred to the federal for review of the decision. Still, the federal court approved the conclusion
of the delegate4. Feeling aggrieved by the decision, the appellant sought to appeal the decision in
the Court of Appeal before Justice Siopsis J5.
Justice Siopsis ruled the appeal in favor of the appellant for reasons that the trial court
had erred in approving the decision of the delegate. He viewed the matter in a more objective
manner considering the grounds relied upon by the appellant. In his response, he found that the
appellant’s spouse was in dire need of emotional support considering the unfortunate
circumstances of her past marriage and therefore entitled to the waiver6.
The judge relied on the reasons that the delegate gave to decline the application for
waiver of the visa by the appellant to make his conclusive ruling. He quoted the case of Soliman
1 Karan v Minister for Immigration and Border Protection [2017] FCA 872
2 Section 41(3) of Migration Act 1958 (Cth)
3 Migartion Act 1958 (Cth) at s41(2A)
4 [2017] FCA 872 at [1]
5 [2017] FCA 872 at[2]
6 [2017] FCA 872 at[3]

v the University of Technology, Sydney7; that even if not obliged in the law, it was prudent for the
delegate to give reasons for declining the application since it proves that the submission of the
applicant had been considered in coming up with the decision. He noted that failure to take into
consideration the presentations of the applicant could constitute jurisdictional error subject to
review. He overruled the decision of the feral court, he relied on the submissions of the appellant
visa vis the decision that was made by the delegates and approved by the federal court8.
Though the respondent and the federal court knew of the submissions and the documents,
they failed to evaluate the contents of the documents and the submissions hence failure to
correctly address the issues that were raised by the appellant9. In the case of Singh v Minister for
Immigration and Multicultural Affairs10 where it was held that a person making a decision might
time be aware of certain information but fails to give it necessary attention and consideration in
decision making.
The impact of the ruling on waiver condition 850311Schedule 8 of the Migration
Regulations is that creates room for the delegate to substantiate their reasons for their decline of
the applications made under section 41(2A) read with Regulation 2.05(4)12. It is only through
such reasons that the applicant would be able to understand the reasons for the denial of the
application by the delegate. Another implication is that the delegate is bound to holistically
evaluate the submissions of other applicants before reaching a final decision of whether to accept
or reject an application. In making a decision, the delegate shall have to consider the content of
the document and not necessarily acknowledge its existence.
7 Soliman v the University of Technology, Sydney (2012) 207 ECR 277
8 [2017] FCA 872 at[4]
9 [2017] FCA 872 at[5]
10 Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152
11 Sch 8, cl 8503 of the Migration Regulations 1994
12 Migration Regulations, 1954 Schedule 8