Wei v Minister for Immigration and Citizenship [2025] FedCFamC2G 1910

1. On 9 February 2023, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of a delegate of the respondent refusing to waive a condition to which the applicant's visa was subject.
2. For the reasons that follow, the application to this Court is dismissed.

1. Section 41 of the Act, titled "Conditions on visas", relevantly provides:

(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; or

(b) ...

(2A) The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).

(3) ...

1. In August 2007, reg 2.05 of the Migration Regulations 1994 (Cth) (Regulations), titled "Conditions applicable to visas", relevantly provided:

(1) For subsection 41(1) of the Act, a visa is subject to any conditions specified for that Subclass of visa in Schedule 2 ...

(4) 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. Schedule 8 to the Regulations is titled "Visa conditions". In August 2007, conditions 8503 and 8534 provided:

8503 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.

8534 The holder will not be entitled to be granted a substantive visa, other than:

(a) a protection visa; or

(b) a student visa the application for which must be made on form 157P or 157P (Internet); or

(c) a Subclass 497 (Graduate - Skilled) visa; or

(d) a Subclass 580 (Student Guardian) visa;

1. The following information is derived from evidence tendered at the hearing in this Court on 11 September 2025.
2. In August 2007, the applicant, a citizen of China, was granted a subclass 580 student guardian visa. The visa was subject to condition 8534.
3. In September 2007, the applicant arrived in Australia on the visa.
4. On 31 December 2007, the visa ceased, following which the applicant was an unlawful non-citizen while he remained in Australia.
5. On 2 March 2022, the applicant, who had not left Australia since his substantive visa ceased in December 2007, requested a waiver of condition 8534 (First Waiver Request). The applicant wrote in support of the request:

My health conditions have been deteriorating from time to time. I am undertaking treatment currently. I seriously need to improve my health conditions before I can depart Australia.

1. The applicant wrote that, if the request to waive condition 8534 was approved, he intended to apply for a subclass 602 medical treatment visa.
2. The applicant provided medical records in support of the First Waiver Request.
3. On 28 April 2022, a delegate of the respondent made a decision refusing to waive condition 8534 because "the circumstances in subregulation 2.05(4) are not met by" the applicant.
4. On 27 June 2022, the applicant again requested a waiver of condition 8534 (Second Waiver Request). In general, apart from some additional medical records, the applicant relied on the same material on which he relied in support of the First Waiver Request.
5. On 13 September 2022, a different delegate of the respondent made a decision refusing to waive condition 8534 because "the circumstances in subregulation 2.05(4) are not met by" the applicant.
6. On 30 January 2023, the applicant again requested a waiver of condition 8534 (Third Waiver Request). The applicant provided medical records dated in November 2022 in support of the request. The applicant also provided a statement in which he wrote:

I am an older man now at 61 years old. I have multiple health issues including Colonic polyps which was removed in August 2022, Hyperuricaemia, intestinal metaplasia and etc. I am suffering from medical conditions and I need to have treatments for them. My condition has only got worsened since the COVID started. In addition, I am not fit to go on international flight for long hours with my current poor health. I have been seeing doctor and specialist and suggested to take regular treatments to get recovered. Please see my medical evidence attached.

I know that the lockdown is now lifted but the virus has not stopped developing. The virus is becoming more dangerous. Especially the after effect after catching covid, I saw on news that people lost their taste, smell and etc permanently. The news says that elders and people with existing medical conditions are more easily to catch the virus and it can be life threatening. The chance of dying for elders like me is significant. I am very scared of the virus. I cannot go on plane right now I am very scared of catching the virus.

1. On 2 February 2023, a delegate of the respondent (who was the same delegate who made the decision dated 28 April 2022) made a decision refusing the Third Waiver Request.

1. The delegate recorded that "the client has requested a waiver of the no further stay condition 8503". The delegate summarised the applicant's reasons for requesting a waiver. The delegate recorded an upfront finding that "the circumstances for waiver of no further stay condition 8503 are not met by the client". The delegate then provided reasons for this finding. In summary:

(a) The delegate noted that a requirement in reg 2.05(4) for the Minister to waive a condition was that "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".

(b) The delegate considered the applicant's reasons for requesting a waiver. The delegate did "not find the circumstances to be compelling and compassionate in nature".

(c) It followed that the applicant did not meet reg 2.05(4).

Judicial review application and steps up to hearing on 11 September 2025

1. On 9 February 2023, the applicant lodged in this Court an application for judicial review of the delegate's decision (Application). The Application contained three grounds (Original Grounds).
2. On 22 June 2023, a registrar of the Court made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve any amended application and a written submission at least 28 days before the hearing.
3. On 19 June 2025, the registry of the Court notified the parties that the matter was listed for hearing on 7 August 2025.
4. On 24 July 2025, the respondent filed a written submission which responded to the Original Grounds.
5. On 6 August 2025, the applicant filed a written submission (AS) which contained "updated grounds of review" (Updated Grounds). A summary of the Updated Grounds is as follows:

Ground 1 - Misidentification of Visa Condition

The decision record dated 2 February 2023 repeatedly refers to condition 8503. The Student-Guardian (Subclass 580) visa granted to the applicant on 22 August 2007 is, and always has been, subject to condition 8534. Misidentifying the governing condition amounts to a jurisdictional error.

Ground 2 - Failure to Consider Relevant Evidence and Prior Applications

The delegate's reasons omit any reference to the applicant's earlier waiver request (2022) and the Department's Request for Further Information dated 10 March 2022 (Annexure B). This indicates that the delegate ignored a mandatory consideration under reg 2.05(4)(b) (whether circumstances are "substantially different" from a prior refusal).

Ground 3 - Procedural Fairness Breaches (Failure to Disclose Decisive Assumptions)

The delegate relied on un-communicated assumptions - namely, that the Applicant could readily obtain equivalent medical treatment in China and could safely travel despite his comorbidities - without first putting those matters to the Applicant for comment. By making critical findings about overseas treatment availability and travel fitness without notice, the delegate failed to accord natural justice as required by Kioa.

1. The document included submissions addressing the Updated Grounds.
2. On 22 August 2025, the respondent filed a written submission which responded to the Updated Grounds (RS).
3. On 5 September 2025, the applicant filed a written submission in reply.

Hearing on 11 September 2025 and post-hearing submissions

1. At the hearing before this Court on 11 September 2025, the applicant appeared unrepresented, assisted by a Mandarin interpreter. The applicant was also assisted by his son who was present in the court room.
2. Siva Valliappan of the Australian Government Solicitor appeared for the respondent.
3. I asked the applicant if the Updated Grounds replaced the Original Grounds. The applicant replied that the Updated Grounds are additional to the Original Grounds.
4. I asked the applicant who prepared his written submission filed on 6 August 2025. The applicant replied that his son prepared the submission. I noted that the submission was well-prepared.
5. Mr Valliappan:

(a) tendered a copy of the Court Book filed in June 2023 and Supplementary Court Book filed in August 2025;

(b) tendered an extract of Procedures Advice Manual 3 (PAM3) which contained Departmental policy concerning reg 2.05(4) in force at the time of the delegate's decision; and

(c) read an affidavit of Charlotte Saunders affirmed on 24 July 2025.

1. The applicant read his affidavit dated 3 August 2025.
2. The applicant made oral submissions, which involved reading a written document prepared by his son. The oral submissions repeated matters stated in the applicant's written submission filed on 6 August 2025.
3. Mr Valliappan made oral submissions which addressed the Updated Grounds.
4. The applicant, after consulting with his son, asked if he could reply to Mr Valliappan's oral submissions in writing. I directed that the applicant may file and serve a written submission in reply to the Minister's oral submissions by 22 September 2025.
5. Following the hearing:

(a) The applicant emailed to my chambers a written submission dated 21 September 2025.

(b) On 7 October 2025, the respondent, with leave, filed a submission which replied to the applicant's submission dated 21 September 2025.

(c) On 8 October 2025, the applicant sent an email to my chambers requesting leave to file and serve a short reply to the respondent's reply submission dated 7 October 2025. I declined to grant leave. The applicant has had sufficient opportunities to provide written and oral submissions to the Court.

1. The applicant correctly states at AS [11] that "the decision record dated 2 February 2023 repeatedly refers to condition 8503", while the visa granted to the applicant in August 2007 "is and always has been subject to condition 8534".
2. The delegate, in his decision dated 2 February 2023, sometimes identified the condition the subject of the waiver request as "condition 8503" and on other occasions as "condition 8534". For example, the delegate stated in an opening sentence of the decision that "the client has requested a waiver of the no further stay condition 8503" and in the section "Findings" that "the circumstances for waiver of the no further stay condition 8503 are not met by the client". But, the delegate stated in the penultimate paragraph of the decision:

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). I am not satisfied the circumstances are circumstances that meet all the criteria set out in the Regulations and therefore condition 8534 has not been waived under sub-section 41(2A) of the Act.

1. The respondent at RS [22] "accepts that the delegate incorrectly refers to condition 8503 in his decision instead of consistently referring to condition 8534".
2. The applicant continues at AS [12]:

Misidentifying the governing condition amounts to a jurisdictional error. The delegate addressed the wrong statutory question and applied an incorrect legal framework.

1. I disagree with this step of the applicant's argument. For the following three reasons, although the delegate occasionally incorrectly referred to condition 8503, the delegate did not address the wrong statutory question or apply an incorrect legal framework:

(a) First, the statutory question the delegate addressed, with reference to reg 2.05(4)(a) of the Regulations, was whether, "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". This was the correct statutory question. The delegate made an upfront finding that "the client does not meet 2.05(4)(a)". The delegate then provided reasons in support of this finding, before concluding:

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). I am not satisfied the circumstances are circumstances that meet all the criteria set out in the Regulations and therefore condition 8534 has not been waived under sub-section 41(2A) of the Act.

Again, this was the correct statutory question.

(b) Second, if condition 8503 was significantly or notably different from condition 8534, depending on the delegate's reasoning process, there might possibly be force in the applicant's complaint to this Court. However, a comparison between the two conditions (see paragraph 5 above) indicates the two conditions are substantially similar. The applicant, despite his extensive written and oral submissions to this Court, did not identify any material difference between conditions 8503 and 8534 relevant to the applicant's case.

(c) Third, the extract from PAM3 tendered by Mr Valliappan contains Departmental policy on the approach to "compelling and compassionate circumstances" in reg 2.05(4) of the Regulations. The policy, under the sub-heading "Regulation 2.05(4) - Compelling/compassionate circumstances", commences:

Types of circumstances envisaged

Overview

The types of circumstances that policy envisages might involve compelling and compassionate circumstances to waive condition 8503, 8534 or 8535 - subject to all other regulation 2.05(4) requirements being satisfied - are discussed in:

• Unfitness to travel
• Death or serious illness within close family
• Natural disaster in home country
• War or severe civil unrest in home country
• Closure or inability of education provider
• Government support

Mr Valliappan emphasised that the policy is the same for conditions 8503 and 8534. There is force in this point. The applicant did not identify any distinction between the policy applicable to waiver of conditions 8503 and 8534.

1. The applicant, in his further submission lodged on 5 September 2025, repeated that "the repeated and exclusive references to condition 8503 demonstrate a fundamental misunderstanding of the statutory and factual context of my case". However, the applicant did not explain the manner in which the delegate's erroneous reference to condition 8503 "demonstrate[d] a fundamental misunderstanding" of the statutory or factual context of the applicant's case. The applicant added in this submission that conditions 8503 and 8534 "serve distinct policy purposes". I disagree. Conditions 8503 and 8534 are "no further stay" conditions. They serve similar policy purposes.
2. If I am wrong about the above, the delegate's error only goes to jurisdiction if it was material in the sense explained in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 (LPDT). The applicant "must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional": LPDT at [14]. The applicant at AS [14] asserts:

The error is material. Had the delegate considered the application under the correct condition (8534) and the relevant PAM3 instructions, a different outcome was reasonably open.

1. As explained above, the applicant has not identified any material difference, relevant to the circumstances of the applicant's case, between conditions 8503 and 8534. Nor has the applicant identified any difference in "the relevant PAM3 instructions". I am not persuaded that any error by the delegate was material.
2. For these reasons, ground 1 does not identify a jurisdictional error in the delegate's decision.

The delegate's reasons omit any reference to the applicant's earlier waiver request (2022) and the Department's Request for Further Information dated 10 March 2022 (Annexure B). This indicates that the delegate ignored a mandatory consideration under reg 2.05(4)(b) (whether circumstances are "substantially different" from a prior refusal).

1. The first sentence in AS [14] is correct. The second sentence is misconceived. The reason the second sentence is misconceived is because of the following approach expressly stated by the delegate:

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)(a), I am not required to assess the claim against the other criteria as set out in sub-regulation 2.05(4).

1. The delegate went on to explain why the applicant did not meet reg 2.05(4)(a). Since the applicant did not satisfy reg 2.05(4)(a), it was not necessary for the delegate to consider reg 2.05(4)(b).
2. As noted by the respondent at RS [28], the delegate's approach was supported by Boutros v Minister for Immigration and Border Protection [2019] FCA 851 at [19]- [20].
3. A separate question is whether the delegate was required to consider the materials in support of the applicant's two earlier waiver requests in assessing the Third Waiver Request. The answer is "no". The applicant did not ask the delegate to consider any material provided in support of the two earlier waiver requests. The delegate was not required to consider material the applicant did not ask the delegate to consider. Further, even if I am wrong and the delegate was required to consider the earlier material, I agree with the respondent's submission at RS [31]-[38] that, with reference to the step of materiality explained in LPDT, the applicant has not satisfied the Court that any consideration of the material could have led to a different outcome being reached by the delegate.
4. For these reasons, ground 2 does not identify a jurisdictional error in the delegate's decision.

The delegate relied on un-communicated assumptions - namely, that the Applicant could readily obtain equivalent medical treatment in China and could safely travel despite his comorbidities - without first putting those matters to the Applicant for comment.

In Kioa v West [1985] HCA 81; (1985) 159 CLR 550, the High Court confirmed that a decision-maker must afford an affected person an opportunity to address adverse material or reasoning that is not obvious on the face of the application. By making critical findings about overseas treatment availability and travel fitness without notice, the delegate failed to accord natural justice as required by Kioa.

It is accepted that the client would like to extend their stay and continue to receive treatment for his medical conditions and avoid the risks of COVID should he travel overseas. I have considered the circumstances presented, including the medical documents provided with this request. However, I find that the client has not presented sufficient evidence that demonstrates that their current circumstances should prevent their departure from Australia. It is noted that the client is currently treating his conditions and he has not presented sufficient evidence that demonstrates that he is either critically or seriously ill. It is further noted that the client has not presented sufficient evidence that supports the claims in his waiver request and there was insufficient evidence presented that demonstrates why the client's medical conditions would prevent his departure from Australia. It is reasonably accepted that the client can obtain the same treatment for his conditions overseas.

1. The applicant complains to this Court in ground 3 that the delegate made two "uncommunicated assumptions" as follows:

(a) "that the applicant ... could safely travel despite his comorbidities"; and

(b) "that the applicant could readily obtain equivalent medical treatment in China".

1. The first "uncommunicated assumption" cavils with the delegate's finding that "there was insufficient evidence presented that demonstrates why the client's medical conditions would prevent his departure from Australia". The applicant does not complain that this finding was wrong, or that it was not open to the delegate to make this finding. He complains that the delegate "failed to accord natural justice" by not affording the applicant "an opportunity to address adverse material or reasoning that is not obvious on the face of the application". However:

(a) That the applicant disagrees with a finding by the delegate does not involve a denial of procedural fairness.

(b) As stated by the respondent at RS [41], "an adverse conclusion as to whether the applicant was able to travel or not was plainly an obvious finding given this was the entire basis of the applicant's request for a waiver".

(c) This complaint overlooks s 51A(1) of the Act which provides that the code of procedure in Subdivision AB of Division 3 of Part 2 of the Act, leading up to the making of a decision by a delegate under s 65, "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with".

1. The second "uncommunicated assumption" challenges the delegate's finding that: (China Treatment Finding)

It is reasonably accepted that the client can obtain the same treatment for his conditions overseas.

1. Again, the applicant does not complain that this finding was wrong, or that it was not open to the delegate to make this finding. He complains that the delegate "failed to accord natural justice" by not affording the applicant "an opportunity to address adverse material or reasoning that is not obvious on the face of the application". Again, this complaint overlooks s 51A(1) of the Act. Further, as stated by the respondent at RS [43], procedural fairness did not require the delegate to disclose what he was minded to decide so that the applicant may have a further opportunity to criticise his mental processes before reaching a final decision.
2. The applicant, in his "reply submission" lodged on 5 September 2025, adds that "the delegate also improperly relied on his own 'specialised knowledge' to assess the availability of medical care in China". This ground falls outside the Updated Grounds. In reply:

(a) The applicant, in his request for a waiver of condition 8534, did not contend that he could not obtain treatment for his various medical conditions in China.

(b) The applicant continues not to contend that the China Treatment Finding was wrong, or that it was not open to the delegate to make the China Treatment Finding.

(c) In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 274 CLR 398 at [18] the High Court stated that there was "nothing in the statutory language of s 501CA(4) of the Act that prohibits the Minister from using personal or specialised knowledge, or commonly accepted knowledge, for the purpose of considering the representations made by an applicant, and in determining whether the Minister is satisfied that there is 'another reason' for revocation". While this proposition concerned the Minster's task in considering representations under s 501CA(4) of the Act, no provision of the Act suggests that a delegate may not also use personal or specialised knowledge, or commonly accepted knowledge, in considering a waiver request.

1. I consider that, to the extent the delegate relied on information not provided by the applicant, it was "personal or specialised knowledge, or commonly accepted knowledge".
2. For these reasons, ground 3 does not identify a jurisdictional error in the delegate's decision.

1. As stated in paragraph 29 above, at the hearing in this Court on 11 September 2025 the applicant stated that he pressed the Original Grounds, although he did not provide any oral or written submissions in support of the Original Grounds. The following paragraphs briefly address the three Original Grounds.
2. Ground 1: The applicant asserts that he has "strong reason to request for waiver of 8503" and "I have serious medical issue and have genuine intention to apply for subclass 602". These matters do not identify an error in the delegate's decision, let alone a jurisdictional error.
3. Ground 2: The applicant asserts that he "provided with Department with sufficient evidence of my medical conditions to demonstrate for the compelling reasons for my waiver request". The applicant makes further assertions about his present situation and state of mind. These matters do not identify an error in the delegate's decision, let alone a jurisdictional error.
4. Ground 3: The applicant asserts that he does not "think I have been fairly treated". This matter does not identify an error in the delegate's decision, let alone a jurisdictional error.
5. For the above reasons, the Original Grounds do not identity a jurisdictional error in the delegate's decision.

1. The applicant's post-hearing submission dated 21 September 2025 raises further additional grounds. In summary:

(a) There is a new ground 2 titled "Inconsistent and boilerplate reasoning" in which the applicant complains that "the delegate adopted boilerplate wording without engaging with the actual statutory requirements" and reached "inconsistent conclusions".

(b) There is a new ground 3 titled "Wrong legal test" in which the applicant complains that the delegate erred in applying the test of "compelling and compassionate circumstances".

(c) There is a new ground 4 titled "Failure to consider cumulatively (PAM3)" in which the applicant complains that the delegate failed to properly apply PAM3.

(d) There is a new ground 5 titled "Irrelevant considerations" in which the applicant complains that the delegate relied on an irrelevant consideration.

1. The applicant has not sought leave to raise these additional grounds. It is not appropriate for an applicant, having been granted leave at the end of a final hearing to file a post-hearing written submission to reply to the respondent's oral submissions during the hearing, to then misuse that opportunity by raising new grounds in the post-hearing submission.
2. Since the applicant has neither applied for, nor been granted, leave to advance the additional grounds, it is not necessary for me to deal with them in this judgment. Despite this, I have briefly considered the proposed additional grounds. I consider that none of them identify a jurisdictional error in the delegate's decision. Since the applicant has neither applied for nor been granted leave to advance the additional grounds, it is not necessary for me to set out my reasons in any more detail.

1. At the conclusion of the hearing, I invited submissions from the parties on costs. Mr Valliappan sought an order that the applicant pay the respondent's costs in the sum of $9,097.93 which was less than the respondent's solicitor/client costs.
2. Rule 25.14(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (2025 Rules) provides:

(1) When the Court determines that a party is entitled to costs in a proceeding to which this Part applies, the party may seek costs and disbursements up to, and including, the amounts specified by Division 1 of Part 3 of Schedule 2, together with the amount of any filing or Court fees paid in relation to the proceeding.

1. Item 1 in Schedule 2 states that "This Schedule applies to work done or services performed on or after 1 September 2025." Division 1 of Part 3 of Schedule 2 specifies the amount of $9,097.93 for "A proceeding concluded at a final hearing". Prior to the commencement of the 2025 Rules in September 2025, the applicable scale amount of costs in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 was $8,371.30. On the one hand, part of the work done by the respondent was performed before 1 September 2025. On the other hand, because of the manner in which the applicant conducted his case, including his misuse of the grant of leave to file a post-hearing written submission, the respondent was required to prepare, file and serve three sets of written submissions. I consider that the amount sought by the respondent is fair and reasonable. I will make an order in this amount.
2. As explained above, I am critical of the applicant's conduct in attempting to raise multiple new grounds in a post-hearing submission filed after the hearing on 11 September 2025. This required the respondent to incur further costs in filing a submission in reply, which was a step in relation to which Mr Valliappan was unaware when he asked for costs in the sum of $9,097.93 at the conclusion of the hearing on 11 September 2025. However, the respondent, in paragraph 17 of its submission filed on 7 October 2025, continued to seek "costs fixed in the scale amount". Hence, I will continue to make an order in the scale amount.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.