Karan v Minister for Immigration: Court of Appeal Decision Analysis

This paper analyzes the case of Karan v Minister for Immigration and Border Protection [2017] FCA 872, focusing on the Court of Appeal's decision and Justice Siopsis's application of statutory principles. The core issue revolves around the waiver of conditions under section 41(3) of the Migration Act, specifically the 'No Further Stay Condition'. The analysis examines the delegate's initial rejection, the subsequent review, and Justice Siopsis's reversal of the Federal Court's decision. The judge considered the appellant's spouse's need for emotional support, and the golden rule of statutory interpretation to interpret regulation 2.05(4)(a). The ruling emphasizes the importance of delegates substantiating their reasons for declining applications and holistically evaluating submissions. The case also references relevant precedents like Soliman v University of Technology, Sydney and Singh v Minister for Immigration and Multicultural Affairs. The paper explores the impact of the ruling on waiver condition 8503 and the interpretation of 'compelling and compassionate reasons', as well as the application of the golden rule. The case study also references Becke v Smith to highlight the importance of understanding the intention of parliament in enacting particular legislation.

CASE KARAN V MINISTER FOR IMMIGRATION AND BORDER PROTECTION
[2017] FCA 872 (2 AUGUST 2017).
The paper analyses reasons for the Court of appeal decision and the statutory principles
that Justice Siopsis adopted in making his determination in the case of Karani v Minister which
was about immigration and Boarder Protection.1 The issue that judges attempted to answer in the
case was whether the application for waiver of conditions under section 41(3).2 by the appellant
could be served with justice if the application was accepted or declined. Section 41(2A) provides
a leeway for foreigners in Australia to apply to the Minister to waive the ‘No Further Stay
Condition3’. The appellant’s application to the Ministry suffered a setback by the delegate. He
referred to the federal for review of the decision. Still, the federal court approved the conclusion
of the delegate4. Feeling aggrieved by the decision, the appellant sought to appeal the decision in
the Court of Appeal before Justice Siopsis J5.
Justice Siopsis ruled the appeal in favor of the appellant for reasons that the trial court
had erred in approving the decision of the delegate. He viewed the matter in a more objective
manner considering the grounds relied upon by the appellant. In his response, he found that the
appellant’s spouse was in dire need of emotional support considering the unfortunate
circumstances of her past marriage and therefore entitled to the waiver6.
The judge relied on the reasons that the delegate gave to decline the application for
waiver of the visa by the appellant to make his conclusive ruling. He quoted the case of Soliman
1 Karan v Minister for Immigration and Border Protection [2017] FCA 872
2 Section 41(3) of Migration Act 1958 (Cth)
3 Migartion Act 1958 (Cth) at s41(2A)
4 [2017] FCA 872 at [1]
5 [2017] FCA 872 at[2]
6 [2017] FCA 872 at[3]

v the University of Technology, Sydney7; that even if not obliged in the law, it was prudent for the
delegate to give reasons for declining the application since it proves that the submission of the
applicant had been considered in coming up with the decision. He noted that failure to take into
consideration the presentations of the applicant could constitute jurisdictional error subject to
review. He overruled the decision of the feral court, he relied on the submissions of the appellant
visa vis the decision that was made by the delegates and approved by the federal court8.
Though the respondent and the federal court knew of the submissions and the documents,
they failed to evaluate the contents of the documents and the submissions hence failure to
correctly address the issues that were raised by the appellant9. In the case of Singh v Minister for
Immigration and Multicultural Affairs10 where it was held that a person making a decision might
time be aware of certain information but fails to give it necessary attention and consideration in
decision making.
The impact of the ruling on waiver condition 850311Schedule 8 of the Migration
Regulations is that creates room for the delegate to substantiate their reasons for their decline of
the applications made under section 41(2A) read with Regulation 2.05(4)12. It is only through
such reasons that the applicant would be able to understand the reasons for the denial of the
application by the delegate. Another implication is that the delegate is bound to holistically
evaluate the submissions of other applicants before reaching a final decision of whether to accept
or reject an application. In making a decision, the delegate shall have to consider the content of
the document and not necessarily acknowledge its existence.
7 Soliman v the University of Technology, Sydney (2012) 207 ECR 277
8 [2017] FCA 872 at[4]
9 [2017] FCA 872 at[5]
10 Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152
11 Sch 8, cl 8503 of the Migration Regulations 1994
12 Migration Regulations, 1954 Schedule 8

In the instance where a statute is open to more than one interpretation, the courts will
have to objectively consider the actual wording in making his decision to set aside the trial court
decision, Justice Siopsis applied the golden rule of statutory interpretation. The issue of
contention in the statute was regulation 2.05 (4)(a)13 to determine the meaning of the words
compelling and compassionate reasons. The same issue also arose in the case of Thongpraphai v
Minister for Immigration and Multicultural Affairs14 It was for the said reasons that the delegate
denied the waiver application stating that that the circumstances of application were not
compelling to the applicant. Justice Siopsis avoided to consider the literal meaning of the statute
but rather viewed the intention of the statute and the consequence of such understanding. The
application of the rule aimed at avoiding interpretations that when applied the verdict of the case
could be obnoxious to the welfare of the appellant and his wife. The judge used a wider
approach of the golden rule to ascertain that it could be a matter of public interest to allow the
appellant to live with her wife who was pregnant. In confirming the position he relied on the
medical reports on the appellant’s wife to find why it was necessary to waive the ‘No Further
Stay Condition15. Justice Siopsis interpreted section 41(3) and Regulation 2.05(4) to mean that a
person the provision intended to favor a genuine applicant to waive the ‘No Further Stay
Condition16. It is for such interpretation that he found that the reasons given by the appellant
satisfied the interest of the public and that the appellant was genuinely in dire need of the waiver.
If the waiver is denied, the appellant's wife was likely to suffer emotional distress that could
result from loneliness and memories of the past marriage. The same interpretation was also
realized in the case of Becke v Smith17 where it was held that it was paramount for courts to
13 Regulation 2.05 (4)(a)
14 Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1950
15 Migartion Act 1958 (Cth) at s41(2A)
16 Migartion Act 1958 (Cth) at s41(2A)
17 Becke v Smith [1836] 2 M&W 195,

understand the intention of the parliament in enacting particular legislation that the court seeks to
apply, if the provisions lead to any repugnance the court may give an interpretation that is in line
with public policy. The issues the court considered included the consequences of the application
of the act to the appellant.
References
Becke v Smith [1836] 2 M&W 195,
Karan v Minister for Immigration and Border Protection [2017] FCA 872

Migration Act 1958
Migration Regulations 1994
Schedule 8 of Regulation 2.05 (4)(a)
Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152
Soliman v the University of Technology, Sydney (2012) 207 ECR 277
Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1950