Karan v Minister of Immigration and Border Protection

Pardeep Kaur, s4633378
Karan v Minister of Immigration and Border Protection [2017]
Pardeep Kaur
s4633378

Pardeep Kaur, s4633378 2
REASONS FOR THE JUDGEMENT
The case was filed by Karan, a 41 years old citizen from Fiji. From the case, the appellant
arrived in Australia in 2000. Since the appellant was coming to visit his family members, who
were residing in Australia, he had applied for a visitor’s visa. The visa was issued out on
conditions set on Clause 8503 sec 8 of the Migration Regulation 1994, which stated that the
appellant was not supposed to obtain another permit, except for the protection visa1. However, no
other stay conditions were given to the appellant while he remained in Australia.
On 2016, March 01, the Minister for the immigration and Border Protection department
denied Karan his request for him to get a waiver to continue staying in Australia. The stay
condition was given under Migration Act 1958, SEC 41(a) that placed the following terms on
visa application; first, the regulations provided that visas applied are for a subject to specific
terms. Some general rules on conditions are: the person requesting for a visa will only get
another visa while in that country, and also, the visa holder will be restricted from doing jobs that
are not included in the.2 The Minister, therefore, specified the above conditions in writing that
made him deny the appellant waiver.
Karan had been in Australia for fifteen years. The appellant married his spouse, who had
Australian citizenship in 2015, and applied for a spouse visa in February 2016, with the help of a
registered representative. The appellant wanted to apply for a waiver, which was supported by
sec 41(2A) of the migration act. To support the claim, Karan and his spouse decided to submit
the required statutory declaration form on 2016, November 09. Karan also acquired a medical
certificate and handed it to the department.
1 See; Migration Regulations 1994(Cth); [1994] AULegSR 268
2 See, Migration Act 1958 (Cth), [1958] AULegAct 62

Pardeep Kaur, s4633378 3
By the time the appellant was applying for a waiver, his wife was pregnant for seven
months. The statutory declaration made by Karan and his wife showed that the wife would be
affected if the appellant was removed from Australia. The statement indicated that the wife
would be mentally disturbed, because she had medical complications with her pregnancy, and
also the previous abusive marriage affected her. The Department of Immigration and Border
Protection gave issued Karan a note, with a deadline of seven days, for him to seek further
medical information on his wife's psychological condition. The appellant, therefore, provided a
report issued by a family doctor Ms. Josie Vander Reset. The doctor’s description showed that
Karan’s wife had mixed anxiety and depression, and her previous abusive marriage made her
have various mental issues. She had been undergoing counseling since 2012.
The Delegate’s Decision
The delegate of the Minister denied the appellant waiver to stay in Australia, citing that
he did not satisfy regulation 2.05(4). Subsection 41(2A) of the migration act that stated that the
person who is given a visa to Australia is subject to the conditions not unless there has developed
compelling and critical circumstances,3 and in this case, Karan's visa was restricted by the
condition, the delegates denied him, weaver. The delegate accepted the compassionate reason for
the appellant to stay in Australia because of her pregnant wife but failed to consider the
compelling reasons. The representatives stated that the appellant had no medical evidence to
show that the appellant's wife needed additional care; thus, the appellant’s circumstances were
not sufficient to acquire a waiver.
Karan was not satisfied with the decision made by the delegates, and therefore he decided
to apply for an appeal that would review the delegate’s decision. The appellant claimed that the
3 See, Migration Regulation 1994 (Cth), Regulation 2.05 (4) [1994] AULegSR 268