Yueram v Minister for Immigration and Citizenship [2026] FedCFamC2G 106

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. The applicant suffers from cerebral palsy and she arrived on shore in Australia as the holder of a Tourist Visa on 22 November 2023. The application for the Tourist Visa had been lodged offshore on 5 September 2023. The visa was granted on 29 September 2023 for a three month stay after a health requirement had been met for a reduced stay of three months.
2. Another application for a tourist stream visitor visa was lodged on behalf of the applicant on 14 January 2024. That application for a three month stay period was granted on 25 January 2024 after the health requirement had been met for a reduced stay of three months. Such visa for a second three month stay period was granted with the "Condition 8503 - No Further Stay" condition imposed.
3. Condition 8503 relevantly provided as follows:

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.

1. In the Decision Record dated 9 April 2024, [1] the decision maker referred to the fact that the applicant had made application for waiver of Condition 8503. The Minister had power to waive Condition 8503 pursuant to the provisions of s. 41(2)(a) of the Migration Act 1958 (Cth) (the Act).
2. Sub-Regulation 2.05(4) of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations) relevantly provided as follows:

(1) ...

(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. The Form 1447 lodged on behalf of the applicant, which sought a waiver of Condition 8503, made the following clearly articulated claim:

"Regrettably my daughter's grandmother, who is Phattharawadi's primary care giver in Thailand, is no longer physically or emotionally capable of providing the necessary care and support required for my daughter's well being. Due to her advanced age and her diagnosis of diabetes, the demands of managing Phattharawadi is impossible. Cerebral palsy necessitates a level of care that exceeds her capabilities as a caregiver in the future."

1. The application for waiver was supported by the applicant's stepfather, one Mr Draydon, who made a statutory declaration which in part advised that the situation involving the care of the applicant had deteriorated in that no suitable carer could be found in Thailand. [2]
2. When considering an application for waiver such as the present, the delegate was required to "grapple" with the material advanced by the applicant in support of the claim. [3]
3. A delegate made the first of two (2) decisions in relation to the applicant's waiver application. In reasons given for refusing the waiver application, the delegate duly considered what constituted compelling and compassionate circumstances. The delegate then found as follows[4]:

I have considered client's presented circumstances and claims as well as all supporting documents attached with this waiver request, including the additional information provided after the initial lodgement. While I do acknowledge Ms Phattharawadi Yueram's concerns regarding their ongoing medical conditions, I also acknowledge that client initially arrived in Australia to visit their family. The client then requested an additional stay to allow a new carer to be found in the client's home country, to prevent the client's mother from having to return home to care for the client.

I note, there have been no changes to the client's circumstances since their last visa grant that meet criteria 2.05 (4)(a) to merit a waiver of condition 8503. At the time of this application, the medical conditions that the client currently manages have been declared in the previous visa grants. These medical conditions are pre-existing and therefore not new a medical condition/ development that has occurred after their previous grant, as a result these circumstances were known to the client and are unable to form the basis for a change in their circumstances in requesting a waiver of condition 8503 on their visa.

I acknowledge that a new carer has not yet been found and while compelling in nature, I find, there is no further supporting medical evidence to suggest that the client's grandmother is unfit to be the appointed caregiver. Nor has the client has been found unfit to travel or is experiencing a life-threatening emergency, that would prevent them from departing Australia and returning to their home country. I find that requesting a waiver of the No Further Stay condition on the client's visa so that the client can remain in Australia with their mother for care and support of their non-life-threatening condition, does not meet the criteria for the waiver request to be approved.

I also find that there was no evidence presented that demonstrates that the client will not have access to medical services in their home country that can treat, care and manage the client's condition once they return to their home country.

(Underlining Inserted)

1. It was submitted on behalf of the applicant that though the delegate had made a "half finding" that a new carer had not been found, [5] the delegate failed to thereafter properly evaluate the representation made on behalf of the applicant that the aged and infirm step-grandmother was physically unable to care for the applicant due to a deterioration in her own condition.
2. It was submitted on behalf of the applicant that the deterioration of the step-grandmother's health was beyond the control of the applicant, and that the resultant inability of the step-grandmother to look after the applicant was "a major change to the person's circumstances". [6]
3. It was further submitted that in finding "There is no further supporting evidence to suggest that the client's grandmother is unfit to be the appointed caregiver" [7], the delegate had:

(a) Overlooked or failed to have regard to the contents of a medical report regarding the step-grandmother prepared by one Dr Chindadarnrongwet dated 30 January 2024 which in part read "The patient has congenital diseases, namely diabetes and osteoarthritis. It is recommended not to lift heavy objects. Do not squat, kneel, squat." [8]

(b) Overlooked or failed to have regard to the contents of the applicant's mother's statement in the visa application which referred to the step-grandmother as follows "She is getting old and unable to pick her up due to back pain and cannot put (her) in wheelchair. We are asking for an extension of time while we find a new carer." [9]

1. In the 20 February 2024 report of Dr Silva, who practiced medicine at the Glasshouse Mountain's Medical Centre, it was said of the applicant "She was wheelchair bound and was spastic in all limbs". Of that, it was submitted on behalf of the applicant that the step-grandmother, being a person who should not lift heavy weights, squat or kneel, was clearly not a person who could provide care to the applicant.
2. The applicant submitted that the delegate had either ignored the relevant fact of the step-grandmother's deterioration in health or otherwise misunderstood the relevant facts. Reliance was placed upon the joint judgment of Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff MI v Minister for Home Affairs (2022) 275 CLR 582 at [24] - [27] where it was held:

[24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.

[25] It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

[26] Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.

[27] None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision‑maker's reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

1. On behalf of the respondent, it was submitted that the delegate had considered all relevant matters, and that the delegate had relevantly engaged with the claims as made. The Court does not accept such submission.
2. The Court finds that the delegate failed to actively intellectually engage with the claims as made on behalf of the applicant as submitted by Counsel for the applicant. The Court accepts the submission made on behalf of the applicant that there was a need for the delegate to properly consider claims which went to the exercise of the discretion to waive the requirements of Condition 8503. There was nothing in the reasons of the delegate to give the Court comfort that such exercise had been undertaken. The delegate failed to grapple with the claims before him. In failing to have regard to relevant facts and having misunderstood what was required for a due consideration of the applicant's claims, the delegate erred. The error on the part of the delegate was jurisdictional in nature.
3. A decision in respect of a second request for waiver of Condition 8503 was made by a delegate of the Minister on 24 April 2024. The delegate found that the applicant's claims were not substantially different from those which had previously been considered. It was submitted on behalf of the applicant that the second decision suffered from the same deficiencies in respect of the making of the first decision - namely that the delegate failed to have regard to relevant considerations. In a submission dated 17 April 2024, which was in support of the further waiver application, it was claimed "The applicant's family have made enquiries throughout their family network and have not been able to secure alternative care arrangements. These enquiries are ongoing and continue to fail to bare fruit at this time". [10]
4. Similar submissions were made on behalf of the respondent in respect of the second decision that had been made in respect of the first decision. It was submitted that, therefore, the application in respect of the second decision ought to be dismissed. The Court does not accept such submission.
5. The Court accepts the submission made on behalf of the applicant that the delegate ought to have considered the applicant's claim that the applicant's family had been unable to secure any alternative care arrangements. There was nothing in the reasons given for making the decision that consideration of that claim had been undertaken when one would have expected that it would have been mentioned had consideration been given to it. That was particularly relevant in circumstances where the delegate who made the second decision did not refer to the evidence of Dr Chindadamrongwet concerning the step-grandmother's state of health. The Court finds that such failure infected the second decision in a way which was jurisdictional in nature.
6. The Court further does not accept the respondent's submission that the errors identified above were not material in nature. The Court finds that had the delegates properly considered all of the applicant's claims in the context of all the evidence before them, then there was a realistic possibility that the outcome of the decision-making process could have been different. [11]
7. The applicant has established jurisdictional error on the part of the delegates.
8. The respective decisions of the delegates made on 9 April 2024 and 24 April 2024 are accordingly quashed.
9. And it is so ordered.
10. The Court will hear the parties as to costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

[1] See Court Book (CB) - Exhibit 1 - p. 99 - 101

[3] Nguyen & Ors v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Matter No. C1 of 2022 (22 July 2022) per Steward J at p. 6

[5] See para 14 of applicant's submissions filed on 28 January 2025

[6] See para 15 of applicant's submissions filed on 28 January 2025

[11] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98

ALJR 612 at [2] - [16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ