Visa Condition Waivers in Australia

This assignment examines the Australian Federal Court case of *Karan v Minister for Immigration and Border Protection* [2017] FCA 872. The appellant sought to waive a 'no further stay' condition attached to his visa, arguing that its removal was necessary due to compelling circumstances impacting his wife's mental health. The court analyzed the delegate's decision-making process, finding it failed to adequately consider the appellant's arguments and relevant expert evidence. The case highlights the importance of proper consideration and addressing all significant submissions when determining visa condition waivers under Australian immigration law.

Karan v Minister for Immigration and Border Protection [2017] FCA 872
In this case an appeal was made by the appellant against the orders of the Federal Court of
Australia.1 The brief facts of this case are that a no further state condition has been imposed on
the visa granted to the appellant in view of the provisions of section 41, Migration Act, 1958.
Regarding the conditions on visa, it has been mentioned in section 41 that the regulations may
provide that the visa of a particular class can be subject to specified conditions. While arriving at
this conclusion, there were certain reasons on which the decision of Siopis J. was based. This
decision has significant implications regarding the waiver of clause 8503, Migration Regulations,
1994. The court noted the fact that the appellant was a 41 years old citizen of Fiji. He had come
from Fiji to Australia in June 2001 the visitor visa for the purpose of visiting his family members
who were staying in Australia. A condition mentioned in clause 8503, Migration Regulations2
has been attached to the visa of the applicant. The effect of this clause was to disentitle the
appellant from making further application for another visa except a protection visa, while the
appellant was in Australia. This condition is known as the no further stay condition.
A delegate of the Minister for Immigration and Border Protection refused the application made
by the appellant, where he had sought the waiver of the no further stay condition imposed on the
visa granted to him. Therefore the appellant made an application to the Federal Circuit Court of
Australia seeking the judicial review of the decision made by the delegate of the Minister. The
application of the appellant was dismissed by the primary judge on 13 December 2016. As a
1 Karan v Minister for Immigration and Border Protection [2017] FCA 872
2 Clause 8503, Schedule 8, Migration Regulations, 1994

result, an appeal was made to the Federal Court of Australia. It was claimed that the Court below
had erred in its conclusion that the respondent had considered the following matters that have
been put forward by the appellant for the purpose of supporting the application made by him
seeking the waiver of the condition. These matters included the fact that the spouse of the
appellant needy emotional support, particularly as a result of an abusive past marriage. The other
matter is the expected effect of the removal of the appellant on the physical and mental health of
his wife and the need of wide of the appellant to have him with her to care for their unborn child
as the wife was seven months pregnant when the application was made.
Siopis J held that the delegate was required to understand the claim that has been made in
support of the application seeking waiver and to deal with the claim, irrespective of the fact how
voluminous or not it was. The court noted that in Soliman v University of Technology3, it has
been mentioned by the full court that although there is no legal requirement due to which
findings or reasons should be provided, but the failure to deal with a submission that is
significantly relevant for the decision being made, can result in the conclusion that such
submission was not considered while making the decision. Such failure can be exposed in the
regions that have been provided voluntarily. The failure to consider such submission may
amount to a jurisdictional error.
Siopis J noted the fact that a significant differences present between the fact that the decision-
maker was aware of the document and its contents and the fact that the decision-maker and
understood and addressed the claim that was made in the document. For example, in Singh v
Minister for immigration4 the board had drawn attention towards this distinction when it
observed that. You make it can be aware of the information without paying any attention to such
3 Soliman v University of Technology, Sydney (2012) FCAFC 146
4 Singh v Minister for immigration and multicultural affairs, 2001, FCA, 389

information or considering the information. Siopis J, noted the fact that the appellant's claim
prominently mentioned that his wife had to face domestic violence during her earlier marriage as
a result of which she had severe mental health issues, and she had been receiving counseling. In
this regard, expert opinion on the psychologist was also given. Hence, the court noted the fact
that the appellant was not claiming that if he was deported, his wife will suffer emotional distress
due to the separation. In fact it was being claimed by the appellant that his wife had suffered
physical and mental, and therefore she had serious mental health issues. Under these
circumstances, the separation may result in the reappearance of these mental health issues.
Although the delegate had referred to the report of the psychologist, but this issue is not
addressed in his reasons. Hence it is clear that the nature of the case being made was not
appreciated by the delegate. As a result, Siopis J stated that the primary judge had erred
regarding the manner pleaded in the ground of appeal.
By applying the principles of statutory interpretation, the Federal Court of Australia considered
Regulation 2.05(4)5, where it has been mentioned that for subsection 41(2A), the circumstances
where the condition can be made by the Minister are that after the grant of visa, there were
compelling and compassionate circumstances and the person has no control over them and due to
which, there has been a major change in the circumstances of that person.
This fact was noted by the Court that even if the report of the psychologist has been mentioned in
the reasons given by the delegate but the delegate has not addressed this issue. In fact, the court
considered it to be apparent that the delegate failed to appreciate the nature of the case that was
being made. The reason was that in the opening sentence, the separation issue has been treated
5 Regulation 2.05(4), Migration Regulations

by the delegate as no more than the fear of experiencing separation anxiety that is generally
present when a person separates from a loved one.

Bibliography
Karan v Minister for Immigration and Border Protection [2017] FCA 872
Singh v Minister for immigration and multicultural affairs, 2001, FCA, 389
Soliman v University of Technology, Sydney (2012) FCAFC 146
Clause 8503, Schedule 8, Migration Regulations, 1994
Regulation 2.05(4), Migration Regulations