Case Study: Karan's Application for Visa Waiver in Australian Law

This case study analyzes the Australian migration law case of Karan, a Fijian citizen who applied for a visa waiver to remain in Australia with his pregnant wife. The assignment outlines Karan's initial application for a waiver of the "no further stay" condition, citing his wife's medical needs. It then details the progression of the case through the Department of Immigration and Border Protection, the Federal Circuit Court, and the Federal Court of Australia. The analysis highlights the reasons for the judge's decision, including the application of the Migration Act 1958 and relevant regulations, particularly clause 8503. The study also references principles of statutory interpretation such as the literal, golden, and mischief rules, along with comparisons to the cases of Soliman v University of Technology, Sydney and Singh v Minister for Immigration and Multicultural Affairs. The document concludes with a list of references and a bibliography.

AUSTRALIAN MIGRATION
LAW & OMARA

TABLE OF CONTENTS
TASK...............................................................................................................................................1
REFERENCES................................................................................................................................4
BIBLIOGRAPHY............................................................................................................................5

TASK
Karan is an appellant in the case who is 41 years old citizen of Fiji. He had travelled from
his country to Australia in 2000 on visitor’s visa to visit his family. He married with an
Australian citizen on 22nd August, 2015. Thereafter, on 10th February 2016, he had filed an
application for waiver of “no further stay” condition that was applied on his Visa. He wanted to
stay with his wife who was approximately seven months pregnant at that time. He had claimed
that his wife required medical treatment for her mental and physical well-being. .
The application for waiving of “no further stay” condition was filed pursuant to section
41 (2A) of Migration Act, 1958. In order to support the application; on 9 February 2016, both
Mr. Karan filed statutory declaration and have provided medical certificates related to the health
issues faced by his wife. On this application, Department of immigration and Border Protection
had asked appellant to submit medical information related to psychological conditions. Ms
Brown is the psychologist who had prepared medical report of Mr. Karan’s wife that
substantiates mental issues faced by her. In this, it has been assessed that his visa was not in line
with the regulation 2.05 Section 8 cl 8503 of Migration Act 1958. Appellant had file application
in order to waive off the condition 8503 mentioned under. But in the final decision judge had
refused his application to waive off “no further stay” condition. Moreover, schedule 8 of
Migration Act (1994), clearly presents that after entering in Australia; the concerned holder of
visa is not entitled to be granted with a substantive visa; except protection visa. Hence, 8503 of
Migration Act (1994) is applicable when the holder of visa remains in Australia. Thus, on the
date of judgement Siopis J accepted Mr. Karan’s request in relation to staying in Australia with
his wife.
Application to Delegate
Karan had filed an application on 10th February 2016 to waive off of the “no further stay”
condition that is applicable on Visa. Regulation 2.05 consists of some conditions which are
applicable to visas. By taking into account the regulations 2.05 (4) and subsections 41 (2) (a) of
Act delegate accepted the appellant desire in relation to staying in Australia with this wife.
Appeal to Federal Circuit Court
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On 4th March 2016, Karan had filled his application in Federal Circuit Court for the same
reason. Appellant had filed application on the grounds of fact that Minister's delegate had not
focused on certain points as mentioned below-
 His wife did require medical support due to her anxiety and depression which is a result
of her previous marriage.
 Appellant assumed responsible to take care his wife.
 His wife was approximately seven months pregnant; so his presence is necessary for
welfare of his child.
Cited case situation presents that after the rejection of for waiver of “no further stay”
condition in the Federal circuit court, appellant, Mr Karan, had filled application in Federal
Court of Australia.
Reasons for judgement of Siopsis J are as aligned below-
On the basis of following reasons Siopis J gave his judgements such as:
 In the concerned case, Siopis J found that appellant visa was subject to a condition.
Moreover, clause 8503 of schedule 8 pertaining to Migration Regulations 1994, deprive
a claim of an appellant in relation to obtaining other visa except protection.
 In addition to this, on 1st March 2016 application submitted by an appellant for waiver
of “no further stay” condition refused by the concerned authorities. Such authorities
include delegate of the respondent, Minister for immigration and Border protection1.
 Further, on 13th December 2016, primary judge dismissed application presented by an
appellant’s for the purpose of judicial review.
Principles of statutory interpretation:
Literal rule: Referring the case of Duport Steel v Sirs case (1980), it can be said that
judges are relied on exact wording of statue for the case. Hence, it strengthens parliamentary
supremacy, promote certainty and reduce litigation.
1 FEDERAL COURT OF AUSTRALIA (2017) <
http://bazalizalawyers.com.au/post/22/application-for-waiver-of-a-no-further-stay-condition-on-
visa-whether-the-decision-maker-failed-to-consider-the-visa-applicant-s-claim>.
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Golden rule: By taking into account the case of Inland Revenue Commissioner’s v
Hinchy (1960); it can be mentioned that it arises when parliament amends the provision of act2.
The mischief rule: In accordance with the case of Heydan’s Case (1584) 3 Co.Rep 7 a;
76 E.R. 637 court needs to or must identify the defect. It lays a high level of emphasis on
interpretation of legislation while resolving specific problem or issue.
Hence, mischief rule applied by Siopis J on Karan’s case because in this judge interpreted
Migrant Act and section as per 41 (2) (A) and associated the same appellant case to arrive at
judgement.
Case: Soliman V University of Technology, 2012.
Case of Soliman V University of Technology, 2012 entails that anonymous UTS student
had made compliant in against to the lecturer. In this, case situation shows that UTS demoted to
Soliman on the basis of investigation report that contains concerned lecturer provided students
with questions before the examination. Under such situation, it was found that Federal Work
Committee or Vice president failed to give sufficient reasons for the decision undertaken. Hence,
it can be presented that disciplinary action taken in against to Soliman is inconsistent. Moreover,
in University matters Committee can take decision regarding university matters on the basis of
related experience3. Hence, FWC could rely on material rather than bounding with the rule of
evidence.
Case: Singh v Minister for Immigration and Multicultural Affairs, 2001,
In the case of Singh, judiciary authority namely Sackville J took decision in relation to
the dismissal of claim for relief made by the applicants. Moreover, in the concerned case, senior
migration officer found that an applicant failed to comply with the, section 50I (6) (C) (ii) of
2 Critical Analysis of the Literal, Golden and Mischief Rule (2017)
<https://www.lawteacher.net/free-law-essays/administrative-law/critical-analysis-of-the-literal-
golden-and-mischief-rule-law-essay.php>.
3 Soliman v University of Technology, Sydney [2012] FCAFC 146 (2017) <
https://jade.io/article/285164>.
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Migration Act, character requirements pertaining to the entry in Australia4. Decision that were
provided by Siopsis J reminds that waiver off condition 8503 is not an easy task.
4 Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389 (2017) <
https://jade.io/article/103418>.
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REFERENCES
Online
Critical Analysis of the Literal, Golden and Mischief Rule (2017)
<https://www.lawteacher.net/free-law-essays/administrative-law/critical-analysis-of-the-
literal-golden-and-mischief-rule-law-essay.php>.
MIGRATION REGULATIONS 1994 - SCHEDULE 8 Visa conditions (2017) <
http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_reg/mr1994227/
sch8.html>.
Soliman v University of Technology, Sydney [2012] FCAFC 146 (2017) <
https://jade.io/article/285164>.
Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389 (2017) <
https://jade.io/article/103418>.
FEDERAL COURT OF AUSTRALIA (2017) <
http://bazalizalawyers.com.au/post/22/application-for-waiver-of-a-no-further-stay-
condition-on-visa-whether-the-decision-maker-failed-to-consider-the-visa-applicant-s-
claim>.
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BIBLIOGRAPHY
Critical Analysis of the Literal, Golden And Mischief Rule, < https://www.lawteacher.net/free-
law-essays/administrative-law/critical-analysis-of-the-literal-golden-and-mischief-rule-
law-essay.php >
Soliman v University of Technology, Sydney [2012] FCAFC 146, <
https://jade.io/article/285164 >
Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389, <
https://jade.io/article/103418 >
Australian Immigration Daily News, < https://migrationalliance.com.au/immigration-daily-
news/entry/2017-07-more-about-seeking-8503-waivers.html >
Application for waiver of a no further stay condition on visa – whether the decision-maker failed
to consider the visa applicant’s claim, < http://bazalizalawyers.com.au/post/22/application-
for-waiver-of-a-no-further-stay-condition-on-visa-whether-the-decision-maker-failed-to-
consider-the-visa-applicant-s-claim >
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