SZRSX v Minister for Immigration and Border Protection

The case of SZRSX v Minister for Immigration and Border Protection involves the appellant, a citizen of Fiji, who seeks to appeal a decision of the Federal Circuit Court that dismissed her application for a review of the delegate's decision refusing her request for a waiver of the "no further stay" condition 8503 attached to her visa. The appellant's visa was initially granted as a Visitor TR676 visa (Tourist visa), which included the "no further stay" condition 8503. The appellant had previously made multiple unsuccessful applications for a Protection visa based on alleged sexual assaults in Fiji and had also attempted to apply for a partner visa with her ex-husband. The main legal issue the court was required to decide was whether the delegate correctly applied the criteria when considering whether circumstances had developed since the visa was granted and whether the appellant had any control over those circumstances.

The court found that the delegate misconstrued the requirements of Regulation 2.05(4) of the Migration Regulations 1994 (Cth) and the accompanying regulations. The delegate appeared to consider that if the appellant, after the issue of the relevant visa, entered into a relationship with a person with whom she had previously had a relationship that would not be a changed circumstance because it is similar to her earlier personal circumstances. However, the court held that the regulation does not exclude newly-developed circumstances which may be similar to those which may have existed prior to the granting of the original visa. The court found that the renewal of the relationship with the ex-husband was the relevant developed circumstance, as it did not exist at the time of the granting of the tourist visa. Therefore, the delegate misconstrued the requirements of the regulation.

The appeal was allowed, and the orders of the Federal Circuit Court were set aside. The decision of the delegate dated 31 August 2017 was quashed, and the application for a waiver of the no further stay condition 8503 was returned to the Minister for determination according to law. The Respondent was ordered to pay the appellant's costs of the appeal and the costs of the application to the Federal Circuit Court.