Gao v Minister for Immigration and Citizenship [2025] FedCFamC2G 1393

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. On 11 November 2022, the delegate of the Minister made a decision that the Applicant, Chunmei Gao, did not meet the criteria for waiver of condition 8534. The decision was not one that was able to be reviewed by the Administrative Appeals Tribunal ("the AAT/Tribunal") and so, therefore, on 6 December 2022, the applicant asked this Court to review the decision of the delegate.
2. The background to this matter is that the applicant is a citizen of China. She arrived in Australia in 2009 as the holder of a student guardian visa. She has stayed in Australia since that time except for two brief absences in 2010 and 2011.
3. The visa under which she entered this country was subject to condition 8534. That condition was that there was a no further stay condition on the visa unless the condition had been waived by the Minister. In other words, she could apply for a certain number of other visas, such as protection visas or student visas, but she was barred from applying for any other visa.
4. In this case, if the waiver had been granted, she would have applied for a medical treatment visa. In deciding whether or not to waive condition 8534, the Minister has power under the Migration Act 1958(Cth) ("the Act") to do so but that power is tempered by reg 2.05 of the Migration Regulations 1994 (Cth) ("the Regulations"). Regulation 2.05(4) says that:

1. 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.

1. In this case, the applicant put forward information to the Minister. There was a cover letter sent by the lawyers representing the applicant that covered what the relevant facts were.
2. In those submissions, which are reproduced at CB 2, the solicitors claim that the applicant had been in Australia since 2009 as a holder of a guardian visa. She had applied for a protection visa in 2012 but that had been refused later on in that same year. Notwithstanding the refusal of that visa, she remained as a holder of the student guardian visa.
3. In February 2016, she married a refugee who had arrived by boat and was subsequently granted a temporary protection visa, and they continue to reside in a married partner relationship, and on 11 February 2022, the applicant was the victim of an assault that left her with "serious injuries". As to those injuries, the applicant added, "We have attached evidence."
4. In the submissions which are part of the same letter but are reproduced at CB 6, the solicitor, after going through many of the matters by way of background, summarises it all under the heading of "Application of the Law to the Facts". The solicitor wrote the following:

We submit that the circumstances of [the applicant] when viewed individually and cumulatively are convincing, demand attention or interest, forceful, and create feelings of sympathy towards her.

The violent assault that took place on 11 February 2022 was beyond the applicant's control. They left her with significant facial injuries and, according to her treating doctor, she requires ongoing psychotherapy which is covered under workers compensation.

This occurred after the grant of her last held substantive visa.

The reduction of violence against women as a priority of the Federal Government, demonstrated in their recent announcement of a 10-year plan: The National Plan to End Violence Against Women and Children 2022 to 2032. We submit this should be given significant weight as evidence of how the violent assault on [the applicant] in her workplace should be viewed, as well as ensuring she has access to high quality medical treatment in Australia.

We submit that as a victim of crime, [the applicant's] circumstances will attract sympathetic attention and should be given significant weight as a compassionate factor in favour of exercising the waiver.

We have considered whether [the applicant] could receive a similar level of medical treatment in China. The Chinese Government is responding to the Covid-19 pandemic with a policy of "zero tolerance". This is causing sudden and unpredictable lockdowns across China. In June 2022, transportation in the city of Jilin was shut down for several days. The unpredictable nature of these lockdowns may affect [the applicant's] ability to obtain the medical treatment she requires. We would also expect that the medical treatment she will receive in Australia will be of a higher quality than which she could receive in China. These can be given some weight as a compassionate factor in favour of exercising the waiver.

We have provided evidence that the application for a medical treatment visa will meet Item 1214A of Schedule 1 Part 602 of Schedule 2 to the Regulations requirements for the grant of the visa, if the condition 8534 is waived.

1. And documents were enclosed. Those documents included a Form 1507 (which is headed Evidence of Intended Medical Treatment) and a statement from the applicant dated 1 July 2022, as well as photos of injuries and other documents that were deemed by the legal representatives to be relevant.
2. At CB 12, the Form 1507 is found. At CB 17 and 18 there are black and white photographs of injuries to the applicant. The one on CB 17 seems to have been taken more or less at the time of the inflicting of the injuries, and the one on CB 18 seems to be a photo taken in the hospital.
3. The applicant's statement is then at CB 19. As to the way in which the injury was perpetrated upon her, the applicant said this at paragraph 32 of that statement:
   1. On 11 February 2022, I started at 10 am. I worked with [X] and a kitchen helper (washing dishes and I don't know her name) in the kitchen. We worked during the day and had no issues. Around 9 pm, [C], Front of House Manager, came to the kitchen and asked us to prepare dishes/orders quickly. She was pushing us.
   2. She left the kitchen, but [X] and I just ignored her as we were already working at a fast pace. About five minutes later, [C] returned to the kitchen to wash her hands. She heard me talking to [X] about she pushed us to work faster.
   3. At 9.30 pm, [C's] husband, [J] came into the kitchen. [J]is a chef working at the Insured's restaurant in Bankstown. I had worked with him before. I was surprised to see him in the kitchen, as he is not an employee of the Auburn shop. He accused me of having an argument with his wife. I told him that I did not want to speak to him and that he should talk to [Jy]. He said he had the authority to manage this situation. I did not want to generate further conflict and attempted to leave the kitchen. However, [J] blocked my way. Things became physical.
   4. C came to the kitchen thereafter and yelled at me. I kept telling J and C that I did not want to talk to them and asked them to leave the kitchen. I was holding a plastic takeaway container whilst I was telling them.
   5. C suddenly grabbed a metal object (I don't know what) and threw it at me. I had no time to react, and it hit my left eye. My eye was bleeding immediately.
   6. C and J kept yelling and telling me off in the kitchen. X stopped them and asked them out of the kitchen.
   7. I did not know what to do and I called my husband. He was in QLD at the time. I told him about the incident, and he asked his friend to come over and assist. I did not tell my son as I didn't want to bother him.
   8. Whilst waiting for my husband's friend, Jy arrived at the restaurant. X told him about the incident. Jy then spoke to C and J but did not provide first aid to me. I don't know their conversation.
   9. I was taken to Emergency Department (ED)of Auburn Hospital about 11 pm. I had not spoken to Jy. I suffered from headaches, neck pain with referred pain into the left fingers, hand, arm, and shoulder and left eye laceration. The wound in my left eye was sutured and redressed. I was discharged at 2 am on 12 February 2022. I did not obtain a standard medical certificate.
   10. On 12 February 2022, I reported the incident to the Police at Auburn Station accompanied by my husband and my son.
   11. C called me when I was at the police station, she wanted to talk about the incident in the shop. She asked us to be there at 2 pm. I did not have an intention to press charges against C at that stage.
   12. C did not show up until 4 pm. She wanted to talk to me, but I was intimidated. My son spoke to her instead.
   13. C told my son she would pay me $1200 as compensation. I was upset because there was no apology, so I did not accept. I told her I would press a charge against her.
   14. I attended Lidcombe Family Medical Centre in February 2022 (I cannot recall the exact date) to remove the sutures. I did not obtain a certificate.
   15. I have attended my GP, Dr David Wang of MediCentral since March 2022 for my situation. I obtained a certificate of capacity at each visit. The most recent certificate I obtained on 8 June 2022 certified me unfit from 26 May to 22 June 2022. I have not given the certificate to Jy as I did not plan to lodge a claim.
   16. I did not feel well since the incident as I had stress and anxiety. I have not returned to work and do not know what to do. I contacted my solicitor in May 2022, and she lodged the subject claim.
   17. I deny being under the influence of alcohol or other drugs, including prescription, at the time my injury occurred. I do not consume illegal drugs or substances.
   18. I do not believe there are any non-work-related factors which could have caused or contributed to my multiple injuries.
   19. I am not involved in any sporting/recreational activities. In my free time, I enjoy reading and walking. I spend time with my son.

51. I have not returned to work since 11 February 2022.

1. My condition has not improved. I have a scar on my left eye. My mental status is not stable. I have a headache every day and am taking painkillers.

1. It would seem that that statement was made for a workers compensation claim, but that is not spelt out other than the statement is given a job number which would seem that it related to some form of proceedings or claim. When one then looks at the Form 1507, the inference that this was a work claim certificate can be made out. Form 1507 is a form that must be completed by a registered medical practitioner, and it is a form that needs to be submitted if there is a medical treatment visa that has been applied for.
2. The first section of that form is for details of the person who is or will be undergoing treatment, and the applicant's name, date of birth and identification documents were filled out. The next section is details of treatment. Under the heading "Medical Condition Requiring Treatment", it is written that she is under "WorkCover for work related injury and anxiety - depression". The next section headed "Treatment Information" and what is written there is, "She is see a psychologist - Ms Lei Li - for CBT".
3. The details of the medical practice where the treatment has been, or will be, provided is then written down. The name of the treating medical practitioner is written as David Wang. The next part, which is a declaration by examining or consulting registered medical practitioner, has this preamble:

I declare that I have examined or consulted with the person named in this form in relation to the person's ongoing or intended medical treatment in Australia and the information provided in this form is true and correct.

1. Then, there is a signature, and the form is undated, but the full name of the practitioner is David Wang, and a registration number is then given.
2. As I say, there were other identity documents. The certificate of marriage and the application for the medical treatment visa which would be applied for if the waiver were granted was also given to the Minister. The visa given to the husband was also given to the Minister.
3. The delegate considered the matter and detailed what the material was before the delegate and the fact that the delegate had considered those documents. The delegate spoke of the term "compelling" and spoke of the term "compassionate circumstances". The delegate then wrote this:

I have acknowledged the client's claims that she wishes to waive the condition 8534 condition imposed on her visa so she can apply for a different subclass visa due to being physically attacked at the workplace and I find this to be compassionate circumstances in nature. However, I must assess whether compelling circumstances are met.

I have taken into consideration all medical evidence provided as well as a statement by the applicant. I note there is insufficient evidence provided to support the health issues claims and that they are of a serious or critical level. In addition, applying for another visa subclass is not a reason to waive the condition 8534.

As international borders have now reopened without restrictions, there is not exceptional circumstance that prevents the client from departing Australia and/or returning to their home country. Therefore, I find it is reasonable to expect the client to make necessary arrangements to return to their home country and apply for a new visa subclass offshore. Thus, I find that compelling circumstances are not met.

In considering all the information the client has provided to support the request to waive condition 8534 I have assessed these claims against the criteria in Regulation 2.05(4) and am not satisfied the circumstances meet the criteria set out in the Regulations and, therefore, the condition 8534 has not been waived under subsection 41(2A) of the Act.

1. On that basis, the delegate refused the request for a waiver. The applicant had a number of grounds of application.
2. Ground 1 of the application

The Respondent's decision, dated 11 November 2022, is affected by jurisdictional error because it failed to comply with procedural fairness, procedures that were required by the Act to be observed in connection with the making of the decision were not observed, the decision was irrational or illogical, or the decision was legally unreasonable and thereby failed to exercise jurisdiction.

1. The applicant makes or raises a number of issues in this first ground but, when I went through them with the legal representative for the applicant, some of those were not made out. I first asked, "What was the failure to comply with procedural fairness?" In making this request, I asked the legal representative, "As to what part of the Migration Act did the delegate fail to comply?" The legal representative then withdrew the procedural fairness aspect from ground 1. The legal representative submitted that the decision document was a template because when one looks at the preamble in the decision record, under the heading Information and Evidence Considered, the delegate simply says that they have considered:

... relevant legislation, information in the PAM3, relevant information held on departmental files, and then documents and information provided by the applicant(s).

1. The applicant submits that she was the only applicant here and that the keeping of the letter S in the brackets after the word applicant is evidence that the delegate was simply to use my words going through the motions and paying lip service to what it is that the applicant had put before the delegate.
2. The applicant points to there being no engagement in the reasons with documents that had been submitted and submissions that had been made by the applicant.
3. The applicant submits that this would give rise to a legitimate feeling that there has not been engagement and true consideration to the documents and submissions that had been put forward by the applicant to the delegate. The greatest example, that the applicant points to, is that the applicant had said that she had married a person who had been the recipient of a safe haven enterprise visa or a temporary protection visa.
4. Whilst this argument was not fully developed, it seems to me that what the applicant meant to say to me today was that, because the husband of the applicant was a person who had such a visa, it was not possible or pragmatic for that person who had the visa to be able to leave the country with the applicant so that she could make an application offshore for the medical treatment visa, and that this was a matter that was open on the material and not engaged with by the delegate. However, this was not a claim that I can see that had been made out on the material before the delegate.
5. There was certainly information that there was a marriage and there was certainly information that the husband had been granted a safe haven enterprise visa, but there was no information as to that person's background or why it was that the person may have an issue with leaving Australia as to travelling to any other countries that would be of danger to that person. The fact that this issue was not raised in the submissions where the legal representative summarised everything under the heading of "Application of the Law to the Facts" is also a very large pointer to the fact that this aspect was not something that was ever going to be raised before the delegate, but is something that has been thought about now and may have been something that could have been the subject of submissions if this were a merit review process before the AAT; but it is not.
6. It is a review application, and the authorities are very clear that it is for the delegate to deal with matters that are well and truly raised upon the evidence that is put before the delegate. I am not of the view that this aspect was put before the delegate, so I do not see that this aspect illustrates any jurisdictional error.
7. The solicitor for the respondent also spoke of the minimisation by the delegate in the delegate's description of this being "a physical assault upon her in the workplace" rather than it being "a serious criminal attack upon her that resulted in a major change to her circumstances". The fact that the delegate did not describe the incident in such a way, the applicant argues, shows that the delegate did not truly take the matter into consideration.
8. When one considers the statement made by the applicant, notwithstanding that it is probably for a WorkCover application, it does not seem to me that the description given to the incident, by the delegate, displays a non-consideration but, rather, displays an even tempered and non-emotive description of what happened. I am not of the view that this aspect bespeaks of any jurisdictional error either.
9. The applicant then also submitted that the delegate did not determine reg 2.05(4) in the proper way. This is because, when looking at reg 2.05(4)(a), the delegate was required to assess whether there were compelling and compassionate circumstances that have developed over which the person had no control and that resulted in a major change to the person's circumstances. The applicant says that the delegate did not do that and has made no mention of whether these circumstances were ones over which the person had no control and had resulted in a major change to the person's circumstances.
10. When one looks at reg 2.05(4), the way in which the conditions are phrased does show that there needs to be a cumulative, conditional ticking of the boxes, as it were. As I have read the section, one has to start with whether there were "compelling and compassionate circumstances" which means there has to be an examination of the circumstances.
11. Are they "compelling and compassionate?"
12. Then, one looks at whether those circumstances are ones "over which the person had no control?".
13. And if that is ticked, then, "have they resulted in a major change to the person's circumstances"?
14. And, if that box is ticked, "if there had been a previous refusal, then is the Minister satisfied that the circumstances are substantially different from those considered previously?"
15. And if that is then ticked, then "is the request in writing?"
16. And if all of those boxes are ticked, then the condition may be waived.
17. The applicant argues that the word "and" does not appear after the word "developed" before (i) and (ii) of sub-regulation (a), but it seems to me that this can be the only logical way in which to look at the matter because, unless there are compelling and compassionate circumstances, then no other aspect of reg 2.05(4) is going to be made out at all.
18. This would seem to be the proper way in which to interpret this section because, in every other aspect in which legislation allows for waivers for "compassionate and compelling circumstances", that is often the "be all" and "end all" of the consideration for waivers; but in this case, there are conditions that are then placed upon those compassionate and compelling circumstances.
19. In reg2.05(4), they are contained in (a)(i), (ii) and then (b) and (c). Because it was that the delegate went straight to look at whether there were compelling and compassionate circumstances that existed, there was no need to consider anything else if that aspect had not been satisfied. Therefore, I do not see that this speaks of jurisdictional error. This means that ground one fails.
20. With regard to ground two, the applicant claims

The Respondent applied an additional requirement not authorised by law, in requiring the health claims of the applicant to be of a "serious or critical level" when undertaking an assessment of the compelling circumstances within the meaning of r.2.05(4)(a) of the Migration Regulations 1994 (the Regulations)

1. This ground is based on the paragraph in the delegate's reasons, in which the first sentence is:

I have taken into consideration all medical evidence provided as well as a statement of the applicant, I note there is insufficient evidence provided to support the health issues claims and that they are of a serious or critical level.

1. This is a reference to what the applicant herself, through her legal representative, had spoken of in the submissions that are reproduced from CB 2 onward, especially under the heading "Relevant Facts":

On 11 February 2022, the applicant was the victim of an assault that left her with "serious injuries".

1. It was then said - this is under the heading "Application of Law to the Facts" - that "the violent assault left her with significant facial injuries and, according to her treating doctor, she requires ongoing psychotherapy".
2. The evidence itself does not come up to that level. The photographs tendered do not show significant facial injuries. The doctor does not say that she requires ongoing treatment, but rather, under the heading "Medical Condition Requiring Treatment", that she "is under WorkCover for work related injury and anxiety, depression, and that she is seeing a psychologist".
3. As was said during the hearing today, there is a complete lack of detail of any particularisation as to what the injuries are and how they are having an ongoing effect on the applicant.
4. It seems to me then, when one looks at what was submitted and what the evidence was, that, when the delegate says that there was insufficient evidence provided to support the health issues claims - that is, the claim made by the applicant - and that they are of a serious or critical level, the delegate is not imposing a standard upon which to assess "compelling or compassionate circumstances", but is speaking of the assessment of the evidence that is before the delegate. For that reason, ground two fails.
5. Ground three is that

The Respondent refers generally to the "medical evidence" but failed to grapple with the evidence in the form 1507 that a General Practitioner had declared the applicant suffered from medical conditions requiring treatment in Australia.

1. This ground is premised upon an over-characterisation of a Form 1507. All this particular form is stating is that "I am a medical practitioner and that this particular applicant is seeing a psychologist." The Form 1507 is signed by a medical practitioner because it must be signed by a medical practitioner, but the medical practitioner is simply saying that this is what the treatment is. There is nothing from the medical practitioner to say anything else of why it is that this treatment is needed, or what is being done in such a treatment.
2. It is also significant that there is nothing in the Form 1507 that talks of any ongoing treatment that is necessary because of the physical aspect of the assault. That is, that there are no ongoing physical disabilities or debilitation suffered by the applicant and, certainly, no disfiguring of the applicant by way of scars or anything of that nature.
3. So, rather than the delegate failing to grapple with the Form 1507, it seems to me that the applicant is putting far too much emphasis on that and reading into the document things that are just not actually evident upon what is said in the form. For that reason, I do not find that ground three illustrates any jurisdictional error.
4. Ground four was not advanced.
5. Ground five was

The Respondent failed to request more information, which could easily have been done if, as they claim, "there is insufficient evidence" relating to medical conditions of the applicant.

1. I need not spend too much time on this ground because it is not for the delegate to make the case for the applicant. The representative of the applicant attempted to submit to me that it is a mandatory requirement that, if an applicant puts before the delegate an application which is deficient, then there is a positive obligation on the delegate to go and find material to plug up the holes in the application.
2. In this case, where it is obvious that there was insufficient medical evidence that was provided, the applicant submits that there was a positive requirement upon the delegate to go and get information from Dr Wang, or from the psychologist, to see what more they could tell the delegate about the medical conditions of the applicant.
3. This has never been the law.
4. The applicant relies upon what the High Court has said in cases where there has been an obligation upon decision-makers to make inquiries where it is that the information is not something that is easily available to the applicant as opposed to that being easily obtainable by the decision-maker. The applicant quotes Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, but that is a totally different sort of matter to this.
5. The maxim that it is for the applicant to prove its case before the delegate is the rule that obtains in a case such as this. It is not for the delegate to have to go and make inquiries to plug up the holes. This ground therefore fails.
6. The final ground is that

The Respondent failed to consider whether the compassionate circumstance, which was accepted, could also be a compelling circumstance within the meaning of r.2.05(4)(a) of the Regulations.

1. The Applicant submits, in effect, that, having found that there were compassionate circumstances should have been part of the consideration as to whether there were also compelling circumstances. Again, there is no legislative definition given to what is a compelling circumstance and what is a compassionate circumstance. But the term is used in that way, "compelling and compassionate". The term "compelling" was spoken of by the delegate in this way. The delegate wrote:

The term "compelling" is not defined in the migration legislation. It must be given its ordinary meaning. "Compelling" means forceful or driving, especially to a course of action. The circumstances must be sufficiently forceful that they lead the decision-maker to make a decision to waive the condition. "Compassionate circumstances", which are also not defined in the legislation and must be given their ordinary meaning, involve the concept of compassion, which is the feeling of sorrow or pity for the sufferings or misfortune of others or sympathy. Compassionate circumstances give rise to these feelings.

1. The delegate quite rightly, and it was open for the delegate to do so, differentiated between the two. That is, what were the circumstances that were forceful or driving the decision-maker to make the decision to waive the condition, and what were the circumstances that made the decision-maker feel sorrow or pity for the applicant such that those feelings may be taken in the decision to waive the condition?
2. By making such a distinction, it was therefore open to the decision-maker to come to the view that there were compassionate circumstances, but, in the overall scheme of things, in looking at everything, which obviously included those circumstances, that they were not compelling or forceful or driving the decision-maker to make the decision to waive the condition.
3. It seems to me that, in looking at all of the circumstances as the delegate said they did, they must have looked at the compassionate aspects but still found that those compassionate aspects were not sufficient, in and of themselves and combined with every other aspect, to compel the delegate to waive the circumstance.
4. A fair reading of what the delegate did in these circumstances illustrates to me that all of the circumstances were taken into consideration in finding that it was no compelling reason to waive the condition. Therefore, ground 6 does not illustrate any jurisdictional error.
5. For all of those reasons, I dismiss the application with costs fixed in the sum of $7700.00

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of Judge Vasta.