Kishore v Minister for Immigration & Multicultural Affairs [2002] FCA 240

FEDERAL COURT OF AUSTRALIA

Kishore v Minister for Immigration & Multicultural Affairs [2002] FCA 240 SEOMANTI KISHORE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 1502 OF 2001 EMMETT J 26 FEBRUARY 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1502 OF 2001

BETWEEN: SEOMANTI KISHORE

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 26 FEBRUARY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed; 2. the applicant pay the respondent's costs; 3. these orders do not come into effect until a copy of these reasons has been made available to the applicant; 4. leave is given for filing of a notice of appeal from these orders within twenty-one days of the date on which a copy of these reasons is made available to the applicant. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1502 OF 2001

BETWEEN: SEOMANTI KISHORE

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE:

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a national of Fiji. She seeks review of a decision purportedly made under the Migration Act 1958 (Cth) ("the Act"), by a delegate of the respondent, the Minister for Immigration & Multicultural Affairs ("the Minister"). The decision that gave rise to the proceeding was a decision, made on 11 October 2001, to refuse to waive a visa condition that the applicant would not be entitled to be granted a substantive visa while she remained in Australia.

statutory framework 2 Section 31(1) of the Act provides that there are to be prescribed classes of visas. Regulation 2.01 of the Migration Regulations 1994 (Cth) ("the Regulations") provides that for the purposes of s 31 of the Act, prescribed classes of visas are such classes as are set out in items in Schedule 1 to the Regulations. Under s 31(3), the Regulations may prescribe criteria for a visa or for visas of a specified class. Regulation 2.03(1) provides that, for the purposes of s 31(3) of the Act, the prescribed criteria for the grant to a person of a visa of a particular class are the criteria set out in the relevant part of Schedule 2. 3 Section 41 relevantly provides as follows: "(1) The regulations may provide that visas or visas of a specified class are subject to specified conditions. (2) Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to: (a) a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia. ……………………… (2A) The Minister may in prescribed circumstances, waive a condition of a kind referred to in paragraph 41(2)(a)…." 4 Regulation 2.05(4 )provides as follows: For subsection 41 (2A) of the Act, the circumstances in which the Minister may waive a condition of a kind described in paragraph 41 (2) (a) of the Act are that: (a) since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed: (i) over which the person had no control; and (ii) that resulted in a major change to the person's circumstances; and (b) if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and (c) if the person asks the Minister to waive the condition, the request is in writing." 5 Schedule 2 contains an item dealing with subclass 686 "Tourist (Long Stay)" visas. Under that item, clause 686.222 provides that the criterion to be satisfied at the time of decision in relation to an application for subclass 686 visa is that the applicant meets the requirements of clause 686.211(2), (3) or (4). Each of subclauses (2), (3) and (4) contains a requirement that the applicant must satisfy public interest criterion 4005, the terms of which are set out in Schedule 4 to the Regulations and relate to the health of an applicant. 6 Clause 686.6, under the item in Schedule 2 dealing with Subclass 686 visas, deals with conditions. Clause 686.613 provides that condition 8503 may be imposed. Condition 8503 is described in Schedule 8 to the Regulations and is in the following terms: "The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia."