Ma v Minister for Immigration and Citizenship [2025] FedCFamC2G 2031

C Give details of why your circumstances are compassionate and compelling.

My unlawful non-citizen status was resulted from the previous agent's negligence that he failed to keep effective communication with me and the Department. I now married to my husband and we are committed to a genuine and life-long relationship. I have managed to prepare fund for the partner visa application and engaged a lawyer to act for me on all those matters. Please waive the 8534 condition, so that my next BVE will not have 8511/8512 but instead a 8508 condition.

1. On 21 July 2023, the first waiver request was refused by a delegate of the Minister on the basis that the applicant did not satisfy reg 2.05(4)(a) of the Migration Regulations 1994 (Cth) (Regulations). The delegate found that the applicant's circumstances were compassionate but not compelling (CB 120-4).
2. On 26 July 2023, the applicant submitted a further application for a waiver in Form 1447 (second waiver request) at 2:30pm (CB 125-139) with the following statement in answer to question 14C (CB 128):

C. Give details of why your circumstances are compassionate and compelling.

My husband becomes totally dependent on my care on the daily life. With my company he quit smoking and drinking and relies on my management for his daily medication. He lost feeling of safety as the home had been burglarised twice before. Upon knowing my request being refused he rapidly developed symptoms of anxiety and depression, and expressed numerous times of suicide thoughts as he believes a life without me will be worthless. Risk of suicide is huge indeed.

1. The second Form 1447 was accompanied by a medical certificate dated 24 July 2023 from a General Practitioner that listed multiple serious medical conditions suffered by the applicant's husband. These included a recently diagnosed depression and anxiety disorder with suicidal ideation, which was treated with anti-depressants but required the applicant's husband to have constant care. The second Form 1447 was submitted by email by the applicant's solicitor (CB 125). In that email, the solicitor explained that the applicant and her husband were recently the victims of two burglaries and that the husband's need for care was critical. Photographs of damage to the applicant's home were produced for the consideration of the delegate. So too, a joint statutory declaration from the applicant and her husband explaining further changes is personal circumstances (CB 139).
2. On 26 July 2023 at 2:46pm, the applicant's solicitor sent another email with attachments that supplemented and expanded on the email and Form 1447 sent earlier that day (third waiver request) (CB 154-5).
3. On 4 August 2023, the Department of Home Affairs requested the following information within seven days from the applicant (CB 141-3):

1. Following on from your spouse's appointment with his GP on the 24/07/2023, what is their current medical status?

2. What treatments/procedures are required to treat your spouse's condition and when will these treatments/procedures take place?

3. What is the time frame to complete treatment for your spouse's condition?

1. On 8 August 2023, the applicant provided two letters from the applicant's husband's treating General Practitioner in response to the request (CB 144-7).
2. On 15 August 2023, the second waiver request was refused by a delegate of the Minister. The delegate found that the applicant did not satisfy reg 2.05(4)(b) of the Regulations because the applicant's circumstances were not substantially different from those considered in the first waiver request (CB 149-153).
3. On 20 October 2023, the third waiver request was refused by a different delegate of the Minister on the basis that the applicant did not satisfy reg 2.05(4)(b) of the Regulations because the applicant's circumstances were not "substantially different" from those considered in the previous waiver request. Once again, the delegate found that the applicant's circumstances were compassionate but not compelling (CB 157-161).
4. On 18 November 2023, the applicant submitted a fourth application for waiver of condition 8534 (fourth waiver request) (CB 162-174) (see also Exhibit "R2", the affidavit of Cohen Dietrich sworn 9 October 2025 and the annexure thereto). This request provided a supplementary medical report from the husband's General Practitioner and a report from a treating Clinical Psychologist (CB 171-3).

1. On 12 December 2023, the fourth waiver request was refused by a delegate of the Minister on the basis that the applicant did not satisfy reg 2.05(4)(b) of the Regulations because the applicant's circumstances were not substantially different from those considered previously (CB 176-180) (Decision).
2. It is from this Decision that the applicant seeks judicial review under s 476 of the Act. The Decision is a non-privative clause decision and is not a primary decision excluded from the jurisdiction of this Court by operation of s 476(2)(a) of the Act or a decision of the Minister excluded by operation of ss 476(2)(b),(c) or (d) of the Act. Therefore, the Court has jurisdiction to entertain an application for judicial review.
3. In Ahmed v Minister for Immigration and Border Protection [2015] FCA 812 at [11] (Ahmed) Perram J said:

There is no obligation on the delegate to produce reasons under reg 2.05(4): Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 at [26]. Despite that, and consistently with decent standards of administration, the delegate did produce reasons for the decision. Another feature of a waiver decision is that there is no right to approach a merits review Tribunal for review and the first port of call is, therefore, the Federal Circuit Court.

1. That remains the position following the creation of the of the Federal Circuit and Family Court of Australia (Division 2) and the amendment of s 476 of the Act.

1. On 22 January 2024, the applicant filed an originating application for judicial review of the Decision (CB 1-18). The application was subsequently amended on three occasions, 4 March 2024 (CB 25-50), 14 June 2024 (CB 51-7) and 18 September 2025. The amendment made on 4 March 2024 joined the Administrative Appeals Tribunal as second respondent and sought judicial review of the Decision and also of a decision of the Tribunal affirming a decision of a delegate of the Minister refusing the applicant a Bridging Visa E (CB 37-8, 40-50). The second amendment removed the claim for relief in relation to the decision of the Tribunal. The third amendment (18 September 2025) is the application now before the Court.
2. In the third amended application the applicant identified five grounds of review as follows (verbatim):

1. The 1st Respondent failed to consider relevant materials or changes in circumstances:

(1) Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1: The High Court in majority held that failing to consider relevant material or misinterpreting the legal criteria for a decision can constitute jurisdictional error: at [101].

(2) Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385: Branson J concluded that the decision-maker failed to take into account a fact to which it was obliged in the circumstances to give significant weight: at [50].

(3) Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323: The majority of High Court held that reasons can reveal a failure to deal with a "material question" the statute required to be considered and such a failure is jurisdictional: at [82].

(4) Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286: The majority of the High Court found that the decision maker shall reach its decision upon the relevant material including any new, fresh, additional or difference material that had been received as relevant to a merits decision: at [37].

a) The Applicant in her 3rd attempt for a request to waive 8534 condition in the Form 1447 signed and submitted to the 1st Respondent on 18 November 2023, stated clearly in section C of Question 14, that "My husband becomes totally dependent on my care on the daily life. With my company he quit smoking and drinking and relies on my management for his daily medication. He lost feeling of safety as the home had been burglarised twice before. Upon knowing my request being refused he rapidly developed symptoms of anxiety and depression, and expressed numerous times of suicide thoughts as he believes a life without me will be worthless. Risk of suicide is huge indeed."

b) Supporting documents provided to the 1st Respondent included marriage certificate, a Centrelink document on the Australian spouse's pension, medical reports from the spouse's GP to evidence the spouse's pre-existing and current medical conditions, and a support letter from a clinical psychologist confirming the spouse's severe anxiety, depression and PTSD.

c) The 'mandatory topics' or 'material questions' that the delegate must answer is prescribed at subregulation 2.05(4) of the Migration Regulations 1994:

"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."

Therefore the delegate shall identify whether or not the Applicant's circumstances have been significantly changed which is beyond their control and if such changes are substantially different from those considered in previous requests.

d) The delegate failed to properly consider the Applicant's changed circumstances, especially her marriage to an Australian citizen and her full-time care responsibilities for the partner. In terms of 'major change' to the Applicant's circumstances, the delegate on the 2nd waiver request ignored the GP's reports on the spouse's newly developed mental conditions, not to mention that the delegate on the 3rd waiver request just ignored the GP's evidence that the spouse also suffers from urinary and faecal incontinence. Each of these medical issues is 'substantially different' from those provided (but not properly considered) to the 1st Respondent.

e) Even after the delegate acknowledged the Australian spouse's multiple medical conditions, it was "noted that no further medical evidence was provided to indicate that he was in a critically worsening condition or in a life-threatening emergency". This quotation proves that the delegate did not adequately assess or give proper weight to the substantial and significant changes of circumstances which indeed should be identified as compelling and compassionate. The delegate may have either applied an overly narrow interpretation of 'compelling and compassionate' or ignored or misconceived evidence of the Applicant's role as a full-time carer, or even worse, that the delegate has answered a wrong question of 'materiality': there is no where the legislation requires such 'major change' or 'substantial difference' must be something like "critically worsening condition" or "life-threathening emergency".

f) In fact, the worsening in the Australian spouse's medical conditions including his mental health deterioration are easily be able to prove the materiality of the issues. If such significant and substantial changes of circumstances could be property taken into account by the delegate, it would have realistically produced a difference outcome of the waiver request: Hossain v MIBP [2018] HCA 34.

2. The 1st Respondent failed to provide procedural fairness by not giving the Applicant an opportunity to respond to concerns about her claim of changed circumstances.

(1) Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1: The High Court emphasised that procedural fairness requires giving applicants a meaningful opportunity to respond to issues critical to the decision: at [34] and [37].

(2) SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152: The High Court held that a decision-maker must inform an applicant of issues not apparent from the application, particularly if they are dispositive to the outcome: at [35].

a) The delegate sent the Applicant a 'Request for more information for waiver of no further stay condition 8534' dated 04 August 2023 in relation to the 2nd waiver request. The Applicant responded the questions on 08 August 2023. Two delegated made two decisions on 15 August 2023 and 20 October 2023 respectively. For those two decisions, though they are not the major one in concern of this proceeding, they are closely related and it is noted that the delegate did not invite the Applicant to comment on the issue why the delegate found the Applicant's circumstances compassionate but did not find the circumstances to be compelling.

b) For the 3rd waiver request, the delegate failed to give the Applicant a new opportunity to respond to the concerns about the issues of compelling circumstances, significant changes and substantial differences. These issues are obviously dispositive to the outcome of the request yet the delegate failed to inform the Applicant the concerns. It is noted that the 3rd waiver request was lodged on 18 November 2023 and the refusal decision was made on 12 December 2023. Plenty of time was in between the dates whilst the delegate did not even try to obtain affirmative evidence in relation to those concerns. If the delegate questioned the substantiality of change of circumstances or doubted the compelling reasons without seeking further evidence or clarification, the 1st Respondent had then breached the rule of natural justice, and established a jurisdictional error.

3. Incorrect interpretation or application of the law: Reg 2.05(4): The 1st Respondent misinterpreted or misapplied sub-regulation 2.05(4) of the Migration Regulations 1994 by adopting an incorrect legal test for "compelling and compassionate circumstances" or by failing to consider whether the Applicant's marriage, caregiving role and her spouse's medical conditions in totality met this threshold.

(1) Plaintiff M61/2010E v Commonwealth of Australian and Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319: The High Court found that misinterpreting legal criteria or applying an incorrect legal test amounts to jurisdictional error: at [78] and [89].

(2) Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32: The Full Federal Court held that a decision-maker's failure to properly interpret the criteria for waiving visa conditions (in a similar context) was a jurisdictional error, particularly when the decision-maker did not assess the full scope of the applicant's circumstances: at [56].

a) Even the delegate acknowledged there existed "compassionate circumstances" but refused to find there were "compelling circumstances" that would have prevented the Applicant to depart Australia. This interpretation of Reg 2.05(4) "would be inconsistent with the purpose to limit the circumstances the 1st Respondent may take into account to circumstances existing at some past point": Waensila, [18]. The purpose of the legislation is to give the 1st Respondent "greater flexibility if and when compelling circumstances arise and, for example, to avoid hardship to the visa applicant": Ibid. However, the delegate in this case took an approach imposing much broader requirements to satisfy the "compelling reasons" by asking if the Australian spouse "was in a critically worsening condition or in a life-threatening emergency", and then wrongfully found that the Applicant's "circumstances do not affect her ability to depart Australia". Thus the delegate from the very beginning narrowed their view and applied for a wrong legal test on Reg 2.05(4)(a) & (b), which does not require the delegate to consider whether "compelling and compassionate circumstances" should exist in the first place.

b) For the four (4) waiver refusal decisions, each subsequent request (the 2nd request linked to two refusals) was lodged with new evidence but the delegate just ignored those convincing evidence by wrongfully adopting an incorrect legal test for "compelling circumstances" and narrowly misinterpreted the term "compelling". Although the 1st Respondent does have a discretionary power to exercise those statutory powers, "the consideration must proceed by reference to correct legal principles, correctly applied": Plaintiff M61 & M69, [78]. On the contrary, the delegate just ignored an evident fact that the Australian spouse's medical conditions were deteriorating each time the 8534 condition waiver refusal decision was notified to the Applicant.

4. The 1st Respondent's decision was legally unreasonable as it was so illogical or irrational that no reasonable decision-maker could have reached it on the evidence provided.

(1) Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332: The High Court clarified that a decision is unreasonable if it lacks an evident and intelligible justification: at [26], [76] and [108].

(2) Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541: The High Court unanimously reiterated that unreasonableness can arise when a decision-maker fails to engage with compelling evidence: at [53] and [84].

a) For all three (3) waiver requests and abundant evidence provided, including the Applicant's marriage to an Australian citizen, her caregiving responsibilities, the worsening medical conditions of the Australian spouse, the 1st Respondent's repeated refusals lack a clear rational basis in light of the evidence and the Applicant's changed circumstances. There was no logical explanation plus a reliance on irrelevant considerations, that the delegate just ignored medical and other evidence of the Australian spouse's dependency on the Applicant. The failure to engage with true compelling evidence had resulted the 1st Respondent's overlooking the Applicant's crucial caregiving role in the relationship.

b) The legally unreasonable exercise of discretion would mean that the 1st Respondent acted beyond its jurisdiction, as it is a legal principle that decision-makers under the Migration Act 1958 are expected to exercise their discretion reasonably, even when statutory provisions attempt to limit judicial review. There were evidence in front of the delegate from which a reasonable decision-maker would certainly take into account seriously but the waiver refusal decision's ultimate outcome is so beyond acceptable bounds that it should be considered irrational. The delegate accorded inappropriate weight to factors, giving too much weight to an irrelevant factor or too little weight to relevant ones. The unreasonableness is manifested.

c) Back to Reg 2.05(4), the legislation requires a decision-maker to assess:

i) If there is any factors out of the Applicant's control? and

ii) If it is reasonable to expect the Applicant's return to their home country? and

iii) Any event to have created compelling and compassionate circumstances? and

iv) If requested but refused before, any substantial change of circumstances?

d) The delegate believed the Applicant's "circumstances do not affect her ability to depart Australia". The fact was, the circumstances do affect the Applicant's return to her home country because of the marriage, the caregiving role and the substantial change of the Australian spouse's medical conditions. Even that the delegate did find the Applicant's circumstances compassionate, no compelling circumstances were found because the delegate was looking for something beyond a reasonable assessor's scope of discretion, where the delegate even denied a suicidal spouse's condition could be considered "critical" or "life-threatening". This reasoning was so absurd that it indeed exceeded a normal explanation of the legislation. Without the Applicant's full-time care, not to mention the spouse is putting trust and confidence to his wife only, who can guarantee that the Australian spouse would not commit suicide or get his medical conditions worsened?

5. The 1st Respondent's decision relied on a finding that no compelling circumstances existed, despite evidence to the contrary. The decision was based on a non-existent jurisdictional fact (e.g., asserting no change in circumstances when marriage and caregiving and deteriorating of medical conditions clearly occurred), this becomes a jurisdictional error.

(1) Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22: The High Court unanimously held that a decision based on a non-existent jurisdictional fact (e.g., a fact critical to the decision-maker's authority) is invalid because the decision-making process can be legally flawed: at [23] and [49].

a) The 1st Respondent did not properly assess the marriage, caregiving and medical conditions as "compelling and compassionate" under Reg 2.05(4). The delegate noted that "no further medical evidence was provided to indicate that he was in a critically worsening condition or in a life-threatening emergency". The finding was totally against the evidence existing. From the GP's medical reports (particularly the one replying to the lawyer's request dated 08 August 2023), the Applicant's care and company is essential for the spouse's physical and mental well-being. From the refusal decision there was no where to see whether or not the delegate applied a reasoning reflecting the key factors have been properly taken into consideration.

b) The assertion of no change in circumstances and no compelling reasons is merely a nonexistence of findings. The Applicant's situation involves three key changes in circumstances:

i) Marriage to an Australian citizen: This establishes a genuine relationship under migration law, potentially qualifying for a Partner visa if condition 8534 is waived; and

ii) Full-time caregiving for the Australian spouse: This could demonstrate compelling and compassionate circumstances, especially when the spouse has medical or other dependencies, supported by evidence such as medical reports and psychologist's support letters; and

iii) Deterioration of the Australian spouse's medical and mental conditions: This could be addressed to the 1st Respondent's failure by incorrectly ignoring evidence provided to assess no substantial change of circumstances occurred after the previous refusal of waiver requests.

c) Therefore, the 1st Respondent's four (4) refusals suggest a possible failure to engage with these changes, potentially due to misapplication of Reg 2.05(4), inadequate consideration of evidence, or lack of procedural fairness, decision unreasonable or irrational, or reliance on non-exist findings. The 1st Respondent failed to provide an opportunity to address concerns about the genuineness or significance of these circumstances, and made an unreasonable or irrational decision by dismissing evidence of the Applicant's changed circumstances.

1. As the Decision was made by the delegate of the Minister on 12 December 2023, the applicant was required to file her originating application seeking review within 35 days of that migration decision (s 477(1) of the Act). The applicant did not file the originating application until 23 January 2024 which was 6 days late. Therefore, the applicant is required to seek an extension of time under s 477(2) of the Act within which to commence the application for judicial review.
2. The hearing of the interlocutory application for an extension of time was listed before this Court in person at Melbourne on 21 October 2025. Mr Zhang, solicitor, appeared for the applicant. Ms Cameron of counsel appeared for the Minister.
3. In support of the application for an extension of time, Mr Zhang relied on an affidavit sworn by him on 18 September 2025, in which he explained that the originating application was filed late because the applicant did not provide him with instructions to file the application because she was focusing on (or awaiting) a hearing at the Tribunal regarding the refusal of her application for a Bridging Visa E. The affidavit further denoted that the applicant was also considering making a further waiver request due to the deteriorating medical condition of her husband. The affidavit evidence filed by Mr Zhang on behalf of the applicant is somewhat confusing. In his first affidavit dated 22 January 2024 he referred only to each of the grounds of review identified in the originating application. He did not address an extension of time.
4. In his second affidavit sworn 28 February 2024, Mr Zhang deposed to why an additional ground of review was to be added to the original four grounds of review. In paragraph [3] of that affidavit he said:

For the reason on extension of timeframe to lodge the application, my client only became aware of the AAT hearing date on 12/01/2024 but delay in instructing me to file the judicial review application on the 8534 condition waiver refusal decision that caused 6 days delay. I have requested the court to take into consideration of the special circumstances of the applicant and her spouse and grant the extension, in particularly the consideration of the applicant's previous request for court filing fee waiver which also took time to collect information.

1. In his third affidavit sworn 18 September 2025 Mr Zhang said:

2. The originating application (MLG141/2024) of judicial review for 8534 condition waiver refusal was filed on 22 January 2024, six (6) days after the 35-day timeframe, upon which the last refusal decision being made on 12 December 2023.

3. When the last refusal decision was notified to the applicant, she was merely focusing on making a further waiver request based on her Australian partner's deteriorating health conditions, as well as waiting and preparing for a coming AAT hearing (dated 25 January 2024) on her BVE refusal. Whilst I was waiting for further instructions, the 35-day timeframe was slipped away from both mind and we missed out the deadline. For this I make sincerely apology to the court. In any event, the court accepted the originating application the next day.

4. As after the AA T affirmed the BVE refusal decision, I was instructed to file another originating application (MLG1822/2024) of judicial review to the court dated 28 February 2024. Later, after exchange with the 1st Respondent' representative, both applications were amended and re-filed to the court on 05 June 2024 and 06 June 2024 respectively.

5. After discussing with the applicant, I was instructed to withdraw the proceeding of MLG1822/2024 without the 1st Respondent's written consent. A Notice of Discontinuance was filed to the court dated 05 September 2025. This has left only one proceeding on foot which is MLG 141/2024 based on the 8534 visa condition waiver's refusal decision.

6. The applicant has been falling into compassionate circumstances: if the extension of time to file MLG 141 /2024 was not eventually granted by the court, the applicant would have no current judicial review proceeding on foot and she would have to seek another 8534 waiver for a potential fresh new proceeding at the court. I believe this could certainly be unnecessary and a waste of court's resources thus the grant of extension of time to let the proceeding continue would be considered the best solution, particularly when the court takes the applicant's extenuating circumstances into account.

1. Doing the best that the Court can, it is to be inferred from this evidence that the delay in providing instructions to commence judicial review proceedings was inadvertent and due to the applicant being distracted by other applications and events, including her husband's medical conditions.
2. The Court also notes that the Court was closed over the Christmas and New Year vacations in respect of part of the time within which to apply for judicial review under the Act. The applicant's delay of six days was not substantial compared to some applications to this Court but nevertheless it was outside the time limit dictated by statute.

1. Mr Zhang on behalf of the applicant relied on an outline of written submissions dated 22 September 2025, which addressed the merits of the amended grounds of review. The applicant also filed a list of authorities of the same date.
2. At the hearing, the Court asked Mr Zhang to address the basis upon which an extension of time was sought by the applicant. In response, Mr Zhang sought to tender a further medical report from the husband's General Practitioner dated 14 October 2025. After discussion regarding the relevance of that document to the application for an extension of time, it was admitted as exhibit "A1". In the report the General Practitioner said:

This is a supplementary report regarding [APPLICANT'S HUSBAND] conditions.

Since my reports dated 25/10/2025, [APPLICANT'S HUSBAND] continues to suffer from depression, anxiety and post traumatic stress disorder with extremely severe symptoms.

His diabetes control is poor. He becomes more physically incapable looking after himself.

[APPLICANT'S HUSBAND]is totally dependent on the care provided by his wife. He needs her physical and psychological support.

1. Mr Zhang then made four points that he said should be taken into account when considering the application for an extension of time:
   1. Extenuating circumstances existed between 13 December 2023 and 16 January 2024, because the applicant was in an "urgent care giving role" due to her husband's worsening health conditions which were "terribly terribly bad";
   2. During the period 16 to 25 January 2025, the applicant was focusing on the Tribunal hearing in relation to her Bridging Visa E refusal decision which was "quite unsettling" and "messy";
   3. Mr Zhang was absent from Australia from 5 January 2024 to 13 January 2024; and
   4. Mr Zhang did not receive any instructions until around 20 or 21 January 2024 and it would have an "extraordinary and irrevocable impact" on the applicant if an extension of time is not granted.
2. Mr Zhang repeated his and the applicant's concern, that the medical condition of the applicant's husband continues to deteriorate. Further, he submitted that without waiver of the 8534 condition the applicant could not apply for a Partner sponsored visa or onshore Partner visa. He also referred to the burglaries at the applicant's home and the financial hardship faced by both the applicant and her husband. If an extension of time was granted then the applicant's circumstances would become "wholly different".
3. When asked to address the merits of the amended application for review, Mr Zhang's response was that "merits do exist" and that "there exists a reasonable prospect of success for either one of the grounds, or a few, if not all". He otherwise relied on the applicant's outline of written submissions and the particulars identified in the amended application for judicial review.
4. Mr Zhang expressed his personal doubts about whether the delegates of the Minister considered all four waiver requests and based their decisions on the documents that were provided. Further, that the delegates did not take into account the deteriorating medical condition of the applicant's husband. The deterioration of his condition made the fourth waiver request substantially different from previous requests.
5. Mr Zhang did not wish to identify any particular ground of review as more persuasive than any other as he considered them all to have merit.

1. Counsel for the Minister relied on an outline of written submissions dated 9 October 2025 and a list of authorities dated 20 October 2025.
2. Ms Cameron submitted that when assessing whether an extension of time was necessary in the interests of the administration of justice, the Court must be provided with a satisfactory explanation for delay in making the application for review. Here, the delay was only six days but there was no satisfactory explanation of delay. The explanation given was that the applicant was distracted by other events and this was not a satisfactory explanation (see SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38] per Foster J (SZSDA)). Especially where the applicant was legally represented.
3. The Minister did not identify any prejudice that would be suffered by an extension, save for the desire for finality in administrative decision making and the timely resolution of migration review proceedings (see Makarov v Minister for Home Affairs (No 3) [2020] FCA 1655 at [128] per Katzman J ).
4. Further, an impressionistic evaluation of the merits of the amended application for judicial review reveals that the amended application has no reasonable prospects of success (see BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 and Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [40] per Gordon, Edelman and Steward JJ (Tu'uta Katoa)).
5. Ms Cameron relied on the outline of written submission which addressed each ground of review. Ms Cameron submitted that the most pertinent issue or claim was whether the delegate could be satisfied that the applicant's circumstances were substantially different to the prevailing circumstances present at the time of rejection of the third waiver request. The only new information submitted on behalf of the applicant, in support of the fourth waiver request, was a psychologist report and a letter from the treating General Practitioner noting the development of the applicant husband's incontinence. Therefore, there was no error by the delegate in finding that there had been no "substantial" difference from the circumstances considered previously. That finding was within the delegate's decisional freedom.
6. It was submitted that the applicant is seeking impermissible merits review of the Decision and that none of the grounds of review identified in the amended application for judicial review disclosed (even on an impressionistic basis), a material jurisdictional error by the delegate. The delegate was not required to find that there were compelling or compassionate circumstances when making the Decision because the condition precedent in sub paragraph (b) of reg 2.05(4) of the Regulations were not met. The explanation given by the delegate of the Decision was logical and rational and not unreasonable, nor did the reasoning meet the high standard required for a finding to be considered legally unreasonable.
7. The Decision was based on the additional medical evidence provided and there was no denial of procedural fairness. The task of the delegate was to assess the further evidence provided to determine of the applicant's circumstances were substantially different.

1. In reply, Mr Zhang submitted that in the reasons given by the delegate in the Decision at CB 179 the delegate noted:

...that no further medical evidence was provided to indicate that he was in a critically worsening condition or life-threatening emergency

1. It was submitted that this proved that the delegate did not give proper weight to the substantial or significant change of circumstances between the third and fourth waiver request. Further there was nothing in the Regulations that required that the change of circumstances be critically worsening or life threatening only substantially different. Therefore, the delegate applied the wrong legal test in assessing the request.

1. The factors which the Court should consider in determining whether to grant an extension of time include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the application for review and any prejudice that may be suffered by the Minister, noting that the absence of prejudice is not sufficient basis alone to grant an extension (see Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344; SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 and Tu'uta Katoa).
2. In Tu'uta Katoa, Kiefel CJ, Gageler, Keanne and Gleeson JJ said at [12] (when considering s 477A(2) of the Act which is in substantially the same terms as s 477(2) of the Act):

[12] On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s477A(2)(a) and the courts satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject matter, scope and purpose" of the Act. The focus of s477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to 3rd parties in the merits of the underlying application. The level of satisfaction for the Court to reach is not low; the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

1. In SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [44], Wigney J said:

[44] Section 477(2) does not define or confine the matters that the Federal Circuit Court can or should have regard to in considering the interests of the administration of justice. In Hickey v Australian Telecommunications Commission [1984] FCA 176; (1983) 72 FLR 291 at 297, Lockhart J said the following in relation to power to extend the time in which an application may be made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act):

... the court should not surround the exercise of its discretion with unnecessary constraints such as a requirement that there be special circumstances or considerations of that kind. The statute does not require them. Nor should the courts. It is best left to the good sense of the judge hearing each case to determine whether, on the evidence before him, the court's discretion should be exercised in favour of granting an enlargement of time to bring an application for an order for review.

1. In this application, the delay was not lengthy and was during the summer vacation period. However, the applicant was represented by a solicitor at the time and the explanation given for the delay in filing is by no means compelling. There was no clear explanation given as to why an application was not made promptly after refusal of the fourth waiver request on 12 December 2023, especially given the apparent importance of the need to obtain a waiver of the 8534 condition. It is apparent that the applicant's husband and his illness was the focus of the applicant's attention at the time the application should have been filed. The fact of the illness and medical condition is one of the factors that may be considered when exercising the broad discretion to extend time.
2. There is also no prejudice suffered by the Minister by the grant of an extension of time. Whilst the absence of prejudice is not a reason to grant an extension of time, the broader interests of justice require applicants to file applications within the time required by the Act and the extension of time is not to be assumed where the delay is small. The statutory time limit is a legislative limitation period that must be given due regard.
3. Despite the short delay in bringing the application and the cursory explanation for the delay, I am not persuaded to grant an extension of time because the merits of the application for review do not have reasonable prospects of success. In reaching this conclusion, the Court has considered the merits of each ground of review identified in the amended application for judicial review, and having done so, the Court is not persuaded that it is necessary in the interests of the administration justice to extend time. At best, the grounds of review identified by the applicant seek to revisit the merits of the Decision and do not identify material jurisdictional error.
4. In assessing the merits, the Court need only take an impressionistic approach. The applicant need only establish an arguable case but there must be substantive merit in the proposed grounds of review if the discretion to extend time is to be exercised. In this case, the Court has taken a more expansive approach to the merits as both parties expressed in both written an oral submissions, clear arguments as to the underlying merits of the amended application for judicial review, that allowed a more detailed analysis of the merits of the applicant's claims.

Ground one -Minister failed to consider relevant materials

1. In the applicant's outline of written submissions, the solicitor for the applicant identified the information provided to the delegate with the fourth waiver request and in particular the psychologist report and the further General Practitioner's report. It was submitted that the delegate failed to properly consider that there had been a "major change" to the applicant's circumstances revealed by this additional information. However, that submission seeks only to dispute the weight given to those new documents and does not identify jurisdictional error. The applicant is simply seeking to disagree with the delegate's findings and the weight given to the evidence by the delegate. That does not disclose jurisdictional error. The delegate did consider the further reports but was not satisfied that they revealed substantially different circumstances (CB 179). That finding was clearly open on the evidence and within the delegate's decisional freedom. This ground therefore has no reasonable prospects of success.

Ground two - Minister failed to provide procedural fairness

1. The delegate did request further information in relation to the second waiver request for 4 August 2023, but by the fourth waiver request, the only additional information submitted was the additional medical report and psychologist report. That was not enough to persuade the delegate of substantially different circumstances. The delegate was not required to identify further information or request further information to provide procedural fairness when considering the request, or before reaching the finding that the additional information did not reveal substantially different circumstances. The applicant does not identify any authority to support the proposition that the failure to make inquiries by the delegate in similar circumstances is procedurally unfair. The applicant's solicitor refers to Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1 at [34] and [37] and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35], as authority for the proposition that a decision-maker must act fairly and must identify issues arising in the decision making process, but that does not mean that every decision must disclose their thought process, or process of reasoning before making a decision based on supplementary information.
2. By the fourth waiver request the issues to be determined were clearly known to the applicant, namely that the applicant needed to show substantially different circumstances to the previous requests. That the information supplied did not disclose such circumstances did not require the delegate to make further inquiries as to whether there was more information. The task required of the delegate to reach a state of satisfaction that the circumstances were substantially different. There was no denial of procedural fairness as there was no duty on the delegate to notify the applicant that the further evidence did not satisfy the delegate of a substantial difference in the circumstances identified by the applicant as compelling and compassionate.

Ground three - Minister misinterpreted or misapplied reg 2.05(4) of regulations

1. The delegate set out the relevant regulation that was required to be considered and then made the following findings and gave reasons (CB 179):

Findings with Reasons:

This is client's 4th waiver request made in writing. All sub-regulation 2.05(4) requirements, as applicable, must be satisfied in order to waive the condition. Failure to satisfy any part of sub regulation 2.05(4) requirements will result in refusal of the waiver request. Since the client does not meet 2.05(4)(b), I am not required to assess the claim against the other criteria as set out in sub-regulation 2.05(4).

The circumstances in the current request must be substantially different from those considered previously. I have considered the client's compassionate circumstances provided in the current waiver request lodged on 18 November 2023 and find that the circumstances provided are not substantially different from those considered previously.

I have taken into consideration all supporting documents provided, including identity documents and driver licences of the client and [THE APPLICANT'S HUSBAND], form 1447, a shared statement by the client and her spouse and their marriage certificate, a Centrelink document dated 21/06/2023 in regards to [THE APPLICANT'S HUSBAND] pension, and client's AFP dated 30/06/2023. The medical evidence consists of [THE HUSBAND'S GENERAL PRACTITIONER'S] medical reports from 24/07/2023 and 08/08/2023 stating [THE APPLICANT'S HUSBAND] medical conditions, both pre-existing and current, and listing all his medications. The client has also supplied a copy of a support letter from psychologist [REDACTED] dated 18/10/2023, confirming his severe anxiety, depression and PTSD, for all of which he continues with his sessions and treatment, and a more recent letter from [THE GENERAL PRACTIONER] dated 25/10/2023.

While I do acknowledge [THE APPLICANT'S HUSBAND] multiple medical conditions which he has been receiving treatment for, I note that no further medical evidence was provided to indicate that he was in a critically worsening condition or in a life-threatening emergency. I also acknowledge that the client would like to stay with her spouse and continue to provide him with the required care and support, however I find that requesting a waiver of the No Further Stay condition on the client's visa so that the client can spend additional time with family members in Australia and continue to take care of them, does not meet the criteria for the waiver request to be approved. Besides, I am satisfied that the client's spouse, as resident in Australia, has ongoing access to adequate local health providers and social/support services in the community.

1. In the particulars of this ground of review, the complaint made is that the delegate 'took an approach imposing much broader requirements to satisfy the "compelling reasons" requirement of the regulation' and 'from the very beginning narrowed their view and applied the wrong test which does not require the delegate consider whether compelling and compassionate circumstances should exist in the first place'. It was also submitted that the delegate 'just ignored an evident fact that the Australian spouse's medical conditions were deteriorating each time the 8534 condition waiver refusal decision was notified to the applicant'.
2. This submission is not supported by the clear reasoning of the delegate when considering the fourth waiver request. The task of the delegate was to assess the fourth waiver request against the third request to be satisfied that there was a "significant difference" to the circumstances in subparagraph 2.05(4)(a) of the Regulations. In Boutros v Minister for Immigration and Border Protection [2019] FCA 851 at [19] Perry J said:

[19] First, it is apparent from the structure of reg 2.05(4) and the use of the word "and" after each criterion prescribed by reg 2.05(4) that all of the criteria specified in sub-reg (4) must be met before the Minister (and therefore her or his delegate) has power to waive the condition. The delegate therefore correctly found that he must be satisfied that the appellant's circumstances meet "all the criteria set out in the Regulations" (emphasis added). In the present case, the delegate was not satisfied that the criterion in reg 2.05(4)(a) (that "compelling ... circumstances" had developed) was met nor that either of the specific criteria in reg 2.05(4)(a)(i) and (ii) were met. Any one of these findings would constitute an independent and sufficient ground for upholding the decision. Unless therefore the appellant can successfully challenge all three findings, the validity of the decision must be upheld: see Hossain at [30] and [35] (Kiefel, Gageler and Keane JJ), and [72] (Edelman J (with whose reasons Nettle J substantially agreed at [39])).

1. Here, the test to be applied by the delegate was not whether the applicant's claims to compelling and compassionate circumstances were substantially different but whether the delegate of the Minister was satisfied that this was so, based on further evidence (Ahmed at [18] per Perram J). The findings and reasons identified above do not disclose any error in the application of the proper test and were reasonable and open to the delegate on the material before them. No jurisdictional error is apparent by this ground of review.

1. There is nothing in the reasoning of the delegate in the Decision that suggests that 'no sensible authority acting with due appreciation of its responsibilities' could have reached the same finding (see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [71]). Nor could it be said that the Decision is illogical or irrational, in the sense that no rational or logical decision-maker could arrive at the same decision on the same evidence (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 (SZMDS) at [131]-[135] per Crennan and Bell JJ). Further, the delegate's findings as to the failure to satisfy the delegate that there was a substantial difference in circumstances had an 'evident and intelligible' foundation (Li at [76]), such that the Decision cannot be properly characterised as a legally unreasonable decision (SZMDS at [132]). The Court should also be slow, although not unwilling, to infer illogicality (see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (Djokovic) at [34]).
2. In AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FCA 1223 at [72] Feutrill J explained illogical and irrational reasoning as follows:

[72] A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision-maker does not come to that conclusion, or if the decision is one to which the decision-maker came was simply not open on the evidence or there is no logical connection between the evidence and the inferences or conclusions drawn.': SZMDS at [135]; DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2; 258 FCR 175 at [30(4)]. However, 'to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality must be demonstrated "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to difference conclusions"': DAO16 at [30(5)] (and the authorities cited therein). Further, describing reasoning as irrational, unreasonable or illogical must be more than a mere emphatic way of expressing disagreement with it: Eshetu at [40] (Gleeson CJ and McHugh J): Minister for Immigration & Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [92] (Wigney J, Allsop CJ agreeing). Likewise, it must mean more than that, on the material before the decision-maker, the court would (or would not) have reached the required state of satisfaction: S20/2002 at [9] (Gleeson CJ). In short, to meet the description of illogical, irrational or unreasonable reasoning in the relevant sense it must be a process of reasoning that results in the equivalent of an arbitrary or capricious decision.

1. Simply because another decision-maker may have reached a different conclusion does not establish that the decision was legally unreasonable (see Minister for Border Protection v Stretton [2016] FCAFC 11 at [21] per Allsop CJ). The findings and reasons of the delegate as to the satisfaction of the requirements of the Regulations, do not reveal illogical, irrational, capricious or unreasonable reasoning such as to make the Decision legally unreasonable and requiring remittal to another decision-maker (CB 179-180). There was no jurisdictional error of the kind sought to be identified in ground four of the applicant's amended grounds of review and this ground has no reasonable prospects of success.

1. The particulars of this ground contend that the delegate erred by failing to properly assess "the marriage, caregiving and medical conditions as compelling and compassionate". It is also contended that the finding that there was no further medical evidence, was provided to indicate that he (the applicant's husband) was in a critically worsening condition or life-threatening emergency" was against the evidence. This objection reveals that the applicant is seeking impermissible merits review and is critical of the weight given by the delegate to the evidence but does not identify jurisdictional error (Djokovic at [17] per Allsop CJ, Besanko and O'Callaghan JJ). The weight to be given to the evidence presented by an applicant is a matter for the decision-maker and not for a Court undertaking judicial review for jurisdictional error (see Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [24]). This ground also lacks merit and no jurisdictional error is apparent.

1. The application for an extension is dismissed. The Court is not satisfied that it is necessary in the interests of the administration of justice to extend time under 477(2) of the Act.

1. The name of the first respondent is to be amended to 'Minister for Immigration and Citizenship', which is the current Ministerial title which changed on 13 May 2025.
2. The second respondent was joined for the purpose of a review of a decision that has now been deleted from the third amended application. The second respondent is no longer a necessary or relevant party to the proceeding and should be removed pursuant to r 9.08 of Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth). An order will be made to that effect.

1. Costs should follow the event. I will hear the parties on the disposition of costs and the amount of those costs before making final orders.

I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.