Migration Law: Judicial Review and Statutory Interpretation

The paper discusses the reasons for a court's decision in the case of Karan v Minister for Immigration and Border Protection [2017] FCA 872. It explains the principles of statutory interpretation used by Siopis J to reach the conclusion, including the consideration of compassionate and compelling circumstances under regulation 2.05 of the Migration Regulations 1994. The paper also examines the appeal process and the primary judge's decision to reject the appeal, as well as the subsequent appeal and the court's ruling that the delegate failed to consider all submissions made by the applicant.

Running head: MIGRATION LAW
Migration Law
Name of the student
Name of the university
Author note

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The paper analyses and discusses the reasons for the court’s decision in the case of
Karan v Minister for Immigration and Border Protection [2017] FCA 872. The paper also
Explain and discuss the principles of statutory interpretation used by Siopis J in this case with
respect to reaching the conclusion. In the given case the person making an appeal was a citizen
of Fiji and was 41 years old1. The appellant travel to Australia from Fiji holding a visitor visa to
pay a visit to his family residing in Australia. Condition 8503 in relation to schedule 8 of the
migration regulations 1994 was applicable on visitor visa held by the appellant. The visa
condition did not allow the person making the appeal to make an application for any other visa
other than a protection visa while he was in Australia2. A refusal with respect to the waiver of
condition 8503 was made by the minister for immigration and border protection and his delegate.
An appeal was made by the appellant in the federal circuit court of Australia for the purpose of
judicial review of the decision provided by the delegate of the Minister. The application made by
the appellant was dismissed by the primary judge on 13 December 2016 in relation to judicial
review3. An appeal was then made by the appeal and against that order to the federal circuit
Court4.
Section 41 of the Migration Act 19585 provided that in prescribed circumstances a
minister has the right to waive the visa condition6. After staying for 15 years in Australia the
appellant had married an Australian citizen and therefore the appeal and due to the no further
stay condition was not able to apply for a spouse Visa7. Upon the medical examination of the
appellant’s wife it was provided that she would suffer increased mental health problems if a
1 [2017] FCA 872 at [1]
2 [2017] FCA 872 at [2]
3 [2017] FCA 872 at [3]
4 [2017] FCA 872 at [4]
5 Migration Act 1958 (Cth) at s41
6 [2017] FCA 872 at [5]
7 [2017] FCA 872 at [6]

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husband would depart from her. However the decision of the delegate of the Minister was that
the way we are of no further stay condition cannot be made as regulation 2.05 of the migration
regulations was not satisfied8. The situation in relation to which a visa condition may be waived
states that compassionate and compelling circumstances must have been developed since the
person was granted a visa which was subjected to 8053 condition. The circumstances must be out
of the persons control and bring a major change to that person's life. If a minister has previously
not waived the no further stay condition he can consider a request again if substantial with
different circumstances take place. It was accepted by the delegate that the desire of the applicant
to stay in Australia who was compassionate in nature however it did not considered the situation
to be compelling9.
The decision of the delegate was found by the primary judge to have considered all
circumstances and as there was no jurisdictional error with respect to the decision of the delegate
the judge had to reject the appeal made by the applicant10.
The appellant again made an appeal in this court stating that the previous court erred
towards its ruling regarding consideration by the delegate of the minister11. The judge in this case
rule that although there was no obligation on the delegates to provide the reason for his decisions
he chose to do so and thus permitted scrutiny of such reasons which were used by him12. In the
case of Soliman v University of Technology, Sydney [2012] FCAFC 146 it had been ruled by
the court that a failure to consider all the submission made by a person can constitute
jurisdictional error1314.
8 Migration Regulations 1994 Schedule 8
9 [2017] FCA 872 at [16]
10 [2017] FCA 872 at [23]
11 [2017] FCA 872 at [24]
12 [2017] FCA 872 at [25]
13 [2017] FCA 872 at [26]
14 [2012] FCAFC 146 at [55]

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The judge in this case found based on the expert opinion provided by the psychologist report that
the wife had suffered emotional distress because of a previous marriage and had a pre existing
condition of anxiety and suicidal tendency the wife may be subjected to further mental damage15.
The case of the appellant was thus not only based on the fact that the wife would suffer because
of the separation. In this case the wife has already suffered various mental trauma and the
Separation could add up to search mental issues16. The judge for the rule that even if the reason it
was provided by the delegate is in relation to the psychologist report the delegate has failed to
address the issue with respect to his reasons. It is also in fact apparent that the nature of the case
was not appreciated by the delegate as in relation to his opening sentence he address the issue of
separation as being no more than anxiety of experiencing separation from loved ones. Therefore
the judge held at in its view the primary judge made an error with respect to the manner pleaded
in relation to the grounds of appeal. In addition the judge provided that for such reasons The
Appeal was to be upheld and an order with respect to the writ of mandamus and certiorari which
has been claimed by the appellant nose to be granted17. The judge even provided that the
appellant was entitled to claim the cost of appeal from the respondent18.
Section 5 of the Interpretation Act 1999 states that while interpreting a meaning of a
statue the judges have to consider the whole purpose of the legislation19. In addition the judges
have to pay attention to the table of contents, the images, the graphics, and the notes provided
through the legislation. The words of the provision has to be given meaning in accordance to the
purpose of the legislation. Therefore in this particular case the judges used Section 5 of the
interpretation act as the migration regulation 1994 regulation 2.05 clearly states that a minister
15 [2017] FCA 872 at [29]
16 [2017] FCA 872 at [30]
17 [2017] FCA 872 at [32]
18 [2017] FCA 872 at [33]
19 Interpretation Act 1999 at s5

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has to waive the no further stay condition after considering properly any compelling or
compassionate circumstances which have originated since the visa was issued and are not in
control of the visa holder.

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Bibliography
Interpretation Act 1999 at s5
Karan v Minister for Immigration and Border Protection [2017] FCA 872
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Soliman v University of Technology, Sydney [2012] FCAFC 146