Answers:

Karan V Minister For Immigration And Border Protection [2017] FCA 872

In this case an appeal was made by the appellant against the orders of the Federal Court of Australia. The brief facts of this case are that a no further state condition has been imposed on the visa granted to the appellant in view of the provisions of section 41, Migration Act, 1958. Regarding the conditions on visa, it has been mentioned in section 41 that the regulations may provide that the visa of a particular class can be subject to specified conditions. While arriving at this conclusion, there were certain reasons on which the decision of Siopis J. was based. This decision has significant implications regarding the waiver of clause 8503, Migration Regulations, 1994. The court noted the fact that the appellant was a 41 years old citizen of Fiji. He had come from Fiji to Australia in June 2001 the visitor visa for the purpose of visiting his family members who were staying in Australia. A condition mentioned in clause 8503, Migration Regulations has been attached to the visa of the applicant. The effect of this clause was to disentitle the appellant from making further application for another visa except a protection visa, while the appellant was in Australia. This condition is known as the no further stay condition.

A delegate of the Minister for Immigration and Border Protection refused the application made by the appellant, where he had sought the waiver of the no further stay condition imposed on the visa granted to him. Therefore the appellant made an application to the Federal Circuit Court of Australia seeking the judicial review of the decision made by the delegate of the Minister. The application of the appellant was dismissed by the primary judge on 13 December 2016. As a result, an appeal was made to the Federal Court of Australia. It was claimed that the Court below had erred in its conclusion that the respondent had considered the following matters that have been put forward by the appellant for the purpose of supporting the application made by him seeking the waiver of the condition. These matters included the fact that the spouse of the appellant needy emotional support, particularly as a result of an abusive past marriage. The other matter is the expected effect of the removal of the appellant on the physical and mental health of his wife and the need of wide of the appellant to have him with her to care for their unborn child as the wife was seven months pregnant when the application was made.

Siopis J held that the delegate was required to understand the claim that has been made in support of the application seeking waiver and to deal with the claim, irrespective of the fact how voluminous or not it was. The court noted that in Soliman v University of Technology, it has been mentioned by the full court that although there is no legal requirement due to which findings or reasons should be provided, but the failure to deal with a submission that is significantly relevant for the decision being made, can result in the conclusion that such submission was not considered while making the decision. Such failure can be exposed in the regions that have been provided voluntarily. The failure to consider such submission may amount to a jurisdictional error.

Siopis J noted the fact that a significant differences present between the fact that the decision-maker was aware of the document and its contents and the fact that the decision-maker and understood and addressed the claim that was made in the document. For example, in Singh v Minister for immigration the board had drawn attention towards this distinction when it observed that. You make it can be aware of the information without paying any attention to such information or considering the information. Siopis J, noted the fact that the appellant`s claim prominently mentioned that his wife had to face domestic violence during her earlier marriage as a result of which she had severe mental health issues, and she had been receiving counseling. In this regard, expert opinion on the psychologist was also given. Hence, the court noted the fact that the appellant was not claiming that if he was deported, his wife will suffer emotional distress due to the separation. In fact it was being claimed by the appellant that his wife had suffered physical and mental, and therefore she had serious mental health issues. Under these circumstances, the separation may result in the reappearance of these mental health issues. Although the delegate had referred to the report of the psychologist, but this issue is not addressed in his reasons. Hence it is clear that the nature of the case being made was not appreciated by the delegate. As a result, Siopis J stated that the primary judge had erred regarding the manner pleaded in the ground of appeal.

By applying the principles of statutory interpretation, the Federal Court of Australia considered Regulation 2.05(4), where it has been mentioned that for subsection 41(2A), the circumstances where the condition can be made by the Minister are that after the grant of visa, there were compelling and compassionate circumstances and the person has no control over them and due to which, there has been a major change in the circumstances of that person.

This fact was noted by the Court that even if the report of the psychologist has been mentioned in the reasons given by the delegate but the delegate has not addressed this issue. In fact, the court considered it to be apparent that the delegate failed to appreciate the nature of the case that was being made. The reason was that in the opening sentence, the separation issue has been treated by the delegate as no more than the fear of experiencing separation anxiety that is generally present when a person separates from a loved one.