Visa Condition Waivers in Australia
Added on 2020-02-19
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Karan v Minister for Immigration and Border Protection[2017] FCA 872In this case an appeal was made by the appellant against the orders of the Federal Court ofAustralia.1 The brief facts of this case are that a no further state condition has been imposed onthe 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 mayprovide that the visa of a particular class can be subject to specified conditions. While arriving atthis conclusion, there were certain reasons on which the decision of Siopis J. was based. Thisdecision 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 comefrom Fiji to Australia in June 2001 the visitor visa for the purpose of visiting his family memberswho were staying in Australia. A condition mentioned in clause 8503, Migration Regulations2has been attached to the visa of the applicant. The effect of this clause was to disentitle theappellant from making further application for another visa except a protection visa, while theappellant 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 madeby the appellant, where he had sought the waiver of the no further stay condition imposed on thevisa granted to him. Therefore the appellant made an application to the Federal Circuit Court ofAustralia seeking the judicial review of the decision made by the delegate of the Minister. Theapplication of the appellant was dismissed by the primary judge on 13 December 2016. As a1Karan v Minister for Immigration and Border Protection[2017] FCA 8722Clause 8503, Schedule 8, Migration Regulations, 1994
result, an appeal was made to the Federal Court of Australia. It was claimed that the Court belowhad erred in its conclusion that the respondent had considered the following matters that havebeen put forward by the appellant for the purpose of supporting the application made by himseeking the waiver of the condition. These matters included the fact that the spouse of theappellant needy emotional support, particularly as a result of an abusive past marriage. The othermatter is the expected effect of the removal of the appellant on the physical and mental health ofhis wife and the need of wide of the appellant to have him with her to care for their unborn childas 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 insupport of the application seeking waiver and to deal with the claim, irrespective of the fact howvoluminous or not it was. The court noted that in Soliman v University of Technology3, it hasbeen mentioned by the full court that although there is no legal requirement due to whichfindings or reasons should be provided, but the failure to deal with a submission that issignificantly relevant for the decision being made, can result in the conclusion that suchsubmission was not considered while making the decision. Such failure can be exposed in theregions that have been provided voluntarily. The failure to consider such submission mayamount 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 andunderstood and addressed the claim that was made in the document. For example, in Singh vMinister for immigration4 the board had drawn attention towards this distinction when itobserved that. You make it can be aware of the information without paying any attention to such3Soliman v University of Technology, Sydney (2012) FCAFC 1464Singh v Minister for immigration and multicultural affairs, 2001, FCA, 389
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