Karan v Minister for Immigration: A Migration Law Case Study Analysis

This case study examines the Federal Court of Australia's decision in Karan v Minister for Immigration and Border Protection [2017] FCA 872, focusing on the application of migration law, specifically concerning a visa applicant's appeal against the rejection of a waiver for the 'no further stay' condition (Condition 8503) under the Migration Regulations 1994. The case revolves around Mr. Karan, who sought to remain in Australia beyond his visitor visa, citing his marriage to an Australian citizen and her pregnancy, and the potential impact of his removal on her mental health. The Minister rejected his application, leading to appeals in the Federal Circuit Court and subsequently the Federal Court. The Federal Court, presided over by SIOPIS J, found that the delegate of the immigration department had not adequately considered the applicant's submissions and supporting evidence, particularly the medical report concerning his wife's mental health. The court referenced the principles of statutory interpretation and the case of Soliman v University of Technology, Sydney, emphasizing the importance of considering all presented grounds. The Court allowed the appeal, set aside the Federal Circuit Court's orders, and issued orders of certiorari and mandamus, directing the immigration department to reconsider Mr. Karan's case. The judgment highlights the significance of proper consideration of evidence and submissions in migration decision-making.

RUNNING HEAD: - Migration Law 0 | P a g e
Migration law
Module Number

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Table of Contents
Rules & Provisions.......................................................................................................................................1
Back ground of Case....................................................................................................................................2
Court’s Order...............................................................................................................................................3
Statuary Interpretation................................................................................................................................3
References...................................................................................................................................................4

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Rules & Provisions
The given case law is relevant to the appeal of a person who wants to stay more in Australia and
the conditions described under the Migration Regulations 1994 and Minister for Immigration and
Border Protection are not allowing him to stay for further period because he came to Australia on
visitor’s visa under the condition 8503 of Schedule 8 to the Migration Regulations 1994 which
do not allow him to apply for any other visa while his stay in Australia. The rules and provisions
applied in the case are as follows1.
 Condition 8503 of Schedule 8 to the Migration Regulations 1994 (Cth)
As per this condition of schedule 8, the applicant who entered into the territory of Australia is not
allowed to apply for any substantive visas while his stay in Australia. However he may apply for
the protection visa if required. Hence as per this condition Mr. Karan cannot apply for the spouse
visa or any other visa in Australia2.
 Section 41 of the Migration Act 1958 (Cth)
The sub-section 1 of this section applies specific conditions on visas or visas of specified class.
In addition to that sub-section 2(a) of this section specify the condition that after entering
Australia, the holder of visa will not be entitled to apply for a substantive visa while he stays in
Australia. However sub-section 2A of this section state as per the implications of this case in
relation to a waiver of condition 8503, Schedule 8 of the Migration Regulations 1994 (Cth) that
this condition could be waived by the Minister in writing by considering the reason of applicant
and the reasons are prescribed under the Regulation 2.05(4) which says that the minister may
waive the condition provided under section 41(2) (a) if the applicant requests in writing to the
Minister to waive the condition or if the person was granted the visa in conditions over which the
1 Migration law, Shedule 8 of the Migration Act 1958 (Cth),
http://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/sch8.html 2019
2 Donnelly, Jason. "Tale of Two Characters–The Paradoxical Application of the Character Test
between Visa Holders and Applicants for Australian Citizenship." Australian Journal of
Administrative Law 25.2 (2018): 104-121.

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individual has not control. Hence Mr. Karan may apply in writing to the Minister to waive the
condition prescribed under section 41(2) (a)3
Back ground of Case
On the basis of above discussed regulation the applicant submitted his application to immigration
department the for a waiver of the no further stay condition by stating that he married an
Australian woman and his wife has seven months pregnancy. He also stated that his removal
from Australia could affect the mental health of his wife because she has an effect of abusive
previous marriage on her mental health. The applicant has submitted his relevant reasons behind
his desire to stay more in Australia but the Minister for Immigration has rejected his application
by stating that his reasons are not competent to allow him for the further stay in Australia.
Further he made an appeal against the decision of delegate of immigration department which was
also dismissed by the primary judge by stating that the matter was not properly taken into
account by the delegate and he failed to overlook the material of case for decision making.
After the dismissal of appeal by Federal Circuit Court of Australia, Mr. Karan made an
appeal in Federal Court of Australia where he presented the similar grounds for supporting his
case. By considering the grounds and case history of appellant, the Court stated that the delegate
of immigration department has not considered the documents and reasons provided by the
applicant for his further stay in Australia4. They only relied on the basic information provided to
them about the circumstances of applicant and his wife but have not considered the material of
case for decision making. For the reflection of relevant circumstances, the Court also consider
the case of Soliman v University of Technology, Sydney, in which it was held that failure to take
any submission or grounds provided by the applicant could result into the unfair decision-
making. In order to this Mr. SIOPIS J who was the judge of the Court also stated that delegate
did not address the appropriate and major reasons in his decision which shows that he have not
consider all the submitted grounds for the final decision making. Hence the applicant has the
3 Carlton Hayes, JH. Nations in Transit-2001-2002: Civil Society, Democracy and Markets in
East Central Europe and Newly Independent States. Routledge, 2017
4 Moran, Anthony. "Multiculturalism and Australian National Identity." The Public Life of
Australian Multiculturalism. Palgrave Macmillan, Cham, 2017. 169-206.

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right to make an appeal against the decision of delegate and also held that orders in the nature of
certiorari and mandamus can be claimed by the appellant5.
5 Greenwood, Justice. "Judicial Review of the Exercise of Discretionary Public Power." AIAL
Forum. No. 88. Australian Institute of Administrative Law, 2017

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Court’s Order
The Court held that the order made by the federal circuit court will be set aside and the applicant
could present his claim under the order of certiorari writ in which the Court decide to review the
case of him by its own discretion. The Court also ordered the respondent to pay the application
cost to appellant which he incurred while making an application to federal circuit court. In order
to regulate the immigration department to look into the matter of appellant, the Court issued an
order under mandamus writ which imposed an obligation on immigration department to consider
the case of Mr. Karan for implications of this case in relation to a waiver of condition 8503,
Schedule 8 of the Migration Regulations 1994 (Cth) of no further stay in Australia. after
rejection by immigration department and dismissal of case by the federal circuit Court, the
federal Court passed this order by considering that the matter was not properly taken into
account by the delegate of immigration department and the information provided under the
submission made by the applicant were not assessed by the delegate while making the decision 6.
Statuary Interpretation
The Court has used the principles of statuary interpretation for making the decision of case. The
principles of statuary interpretation suggest that Courts may construe statutes for the application
in any specific case and judicial interpretation could also be used by the Courts. Here the Court
may interpret the circumstances of matter by relating them to the previous settled judicial cases.
Hence by observing the case law of Singh v Minister for Immigration and Multicultural Affairs,
the Court held that a decision-maker may be consider the information without paying any
attention to it or giving it any consideration7. Thus there is difference between being aware of a
6 Migration law, Section 41 of the Migration Act 1958 (Cth),
http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s41.html 2019
7 Khorshidi, S., Solouk, A., Mirzadeh, H., Mazinani, S., Lagaron, J. M., Sharifi, S., &
Ramakrishna, S. (2016). A review of key challenges of electrospun scaffolds for tissue‐
engineering applications. Journal of tissue engineering and regenerative medicine, 10(9), 715-
738.

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document or its content and understanding and addressing the matter which is being claimed
under the document. In the given case, the delegate had not considered the medical report of
applicant’s wife issued by a psychologist who referred that removal of Karan from Australia
could cause her mental health8.
8 Donnelly, Jason. "Tale of Two Characters–The Paradoxical Application of the Character Test
between Visa Holders and Applicants for Australian Citizenship." Australian Journal of
Administrative Law 25.2 (2018): 104-121

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References
Donnelly, Jason. "Tale of Two Characters–The Paradoxical Application of the Character Test
between Visa Holders and Applicants for Australian Citizenship." Australian Journal of
Administrative Law 25.2 (2018): 104-121.
Greenwood, Justice. "Judicial Review of the Exercise of Discretionary Public Power." AIAL
Forum. No. 88. Australian Institute of Administrative Law, 2017.
Hayes, Carlton JH. Nations in Transit-2001-2002: Civil Society, Democracy and Markets in East
Central Europe and Newly Independent States. Routledge, 2017.
Khorshidi, S., Solouk, A., Mirzadeh, H., Mazinani, S., Lagaron, J. M., Sharifi, S., &
Ramakrishna, S. (2016). A review of key challenges of electrospun scaffolds for tissue‐
engineering applications. Journal of tissue engineering and regenerative medicine, 10(9), 715-
738.
Migration law, Section 41 of the Migration Act 1958 (Cth),
http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s41.html 2019
Migration law, Shedule 8 of the Migration Act 1958 (Cth),
http://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/sch8.html 2019
Moran, Anthony. "Multiculturalism and Australian National Identity." The Public Life of
Australian Multiculturalism. Palgrave Macmillan, Cham, 2017. 169-206.
Subregion, G. M., People, I. D., & Arrivals, I. M. (2016). Department of Immigration and
Multicultural and Indigenous Affairs European Commission European Union European Border
Surveillance System Fundacion de Antropologia Forense de Guatemala. Mobility and Migration
Choices: Thresholds to Crossing Borders.