• Internal Code :
  • Subject Code : LML6002
  • University : Victoria University
  • Subject Name : Migration Law

Assessment

Reasons of Siopsis J for his decision and its Implications

The judgment in Karan v Minister for Immigration and Border Protection centered around the applicant’s visa subject to the regulations flowing from Section 41 of the Migration Act 1958 (Cth). Schedule 8, Clause 8503, Migration Regulations 1994, was applied on the applicant’s visa. Condition 8503 refers to a mandatory “No further stay” condition applied on a visa. A “No Further Stay” condition is with reference to a condition that restricts the holder of the visa from applying for several permanent and temporary visas as long as they remain in Australia. Thus, no other visa can be applied for excepting a protection visa (subclass 866), as long as the holder of visa remains in Australia. A delegate of the Respondent, the Minister for Immigration and Border Protection (the Minister) did not allow the application of the Appellant for waiver of the no further stay condition. 

The Appellant had resided in Australia for 15 years since 2000 when he arrived in Australia on a Visitor’s Visa. As a result of the condition 8503, the appellant could not apply for a spouse visa in 2015 and applied for waiver of the condition 8503 in 2016, pursuant to Section 41(2A) of the Migration Act, in order to apply for the visa for supporting his wife during her pregnancy and to prevent exacerbating her mental health issues, evidenced by psychologist’s report, that may be ensued on account of separation. The Respondent refused the waiver of the condition due to non-compliance with the Regulation 2.05(4) of the Migration Regulations 1994. As per Regulation 2.05(4) of the Regulations, there are certain circumstances under which the restriction or the condition of the nature that is listed under Section 41 of the Migration Act may be waived. As per the same, in the situation in which there was a previous refusal on part of the Minister with respect to the waiving of the Condition, the Minister must be satisfied with respect to the following: There must have developed compassionate and compelling circumstances since the granting of the Visitor Visa which had been subjected to the condition. There must have arisen compelling and compassionate circumstances over which the applicant did not any control. Further, there must have been a major change to the circumstances. Finally, the circumstances must have been substantially different than those which were considered previously. 

The delegate considered that although the reasons for which the Appellant had made his decision to stay in Australia to support her wife during her pregnancy was “compassionate in nature”, the same were not “compelling” enough to be “forceful or driving”. On application to the Federal Circuit Court for judicial review of the decision of the delegate, the Federal Circuit Court dismissed the claim on account of the lack of any jurisdictional error by the delegate. On appeal before the Court in the instant case, this Court considered the grounds put forward by the appellant. These grounds related to the error made by the delegate on failing to consider the circumstances reflecting the wife’s need for support from her spouse, thereby justifying the appellant’s application for waiver of Condition 8503. The court considered that as the delegate gave reasons for his decision, although not being obliged to do so, the court may review the reasons. The court referred to the case of Soliman v. University of Technology, Sydney, to hold the lack of obligation to give reasons for decision may not be an excuse from determining the failure to address a specific submission that is pertinent to the decision and this failure may be exposed by virtue of the reasons which are cited for the decision, resulting in jurisdictional error. The court determined that it was not merely sufficient to be aware of the contents of application for waiver but also to understand and address that claim, following Singh v Minister for Immigration and Multicultural Affairs. Applying these rulings in the instant case, the Court observed that the delegate simply treated the claim as being a case of separation from a loved one causing distress to the wife whereas the claim for waiver referred to the risk of exacerbating mental health issues on part of the wife due to the separation, based on the psychologist report. The delegate had not considered this latter issue in his decision. Accordingly, the court held that the delegate had erred in making his decision and upheld the appeal. 

The implications with respect to the waiver of condition 8503, schedule 8 of the Migration Regulations 1994 (Cth) from the case of Karan, are that the decision by a delegate for such waiver application must not only take into account the submissions for such request but must also understand and address the submissions in making the decision. 

Principles of Statutory Interpretation adopted by Siopsis J in reaching his conclusion

Siopsis J. applied the mischief rule of statutory interpretation in interpreting Section 41(2A) of the Act in conjunction with Regulation 2.05(4) of the Regulations. As per the mischief rule, there must be consideration of additional interpretation of words after prima facie considering the ‘literal meaning’ i.e. construing an interpretation in light of an ambiguity of the words in light of the purpose of the legislation. In the instant case, the Act vide Section 41(2A) gives the Minister discretion in prescribed circumstances to waive the condition 8503 on visa by writing, but does not specify the manner of such written decision. Further, Regulation 2.05(4) lists out the circumstances for consideration by the Minister in waiving the condition and in the situation that the Minister had refused to waive the condition previously, the Minister must have been ‘satisfied’ that that circumstances occurred warranting waiving of the condition, suggesting the need to understand the circumstances. Siopsis J., in his reasoned judgment implied the purpose of the legislation with respect to the Minister understanding the claim for application of waiver before making his decision. This is reflected by his reasoning that although the statute did not require any reasons for waiving of condition, since the delegate had given the reasons, following Soliman and Singh, the review of reasons was permitted by the court in order to determine whether the delegate had specifically addressed the claims put forward in the waiver request after understanding them. Thus, the Court read the requirement of the delegate to address the specific claims in his decision with respect to application for waiver of condition 8503 in the event that he gave the reasons for the waiver, thereby removing the ambiguity in the legislation with regard to the manner of writing in deciding on a waiver application.    

Bibliography

Laws 

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth) 

Cases 

Karan v Minister for Immigration and Border Protection [2017] FCA 872

Soliman v University of Technology, Sydney (2012) 207 FCR 277

Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [58]

Heydon’s case (1584) 3 Co Rep 7a

Mills v Meeking  (1990) 169 CLR 214

 

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