Pham v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1063
•11 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pham v Minister for Immigration and Citizenship [2025] FedCFamC2G 1063
File number(s): ADG 302 of 2022 Judgment of: JUDGE GERRARD Date of judgment: 11 July 2025 Catchwords: MIGRATION – Review of delegate’s decision – refusal to waive condition 8503 (no further stay) – whether the delegate failed to understand and address the applicant’s claims – whether the delegate failed to apply the correct legal test – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 41, 41(2)(a), 41(2A), 476, 476(4)
Migration Regulations 1994 (Cth) reg 2.05(4)
Cases cited: Boutros v Minister for Immigration and Border Protection (2019) 166 ALD 108
Dannawi v Minister for Immigration [2017] FCCA 286
Farhat v Minister for Immigration and Border Protection (2018) 159 ALD 272
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Karan v Minister for Immigration and Border Protection [2017] FCA 872
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152
Soliman v University of Technology, Sydney (2012) 207 FCR 277
Yaacoub v Minister for Immigration and Border Protection [2018] FCAFC 39
Zaro v Minister for Immigration and Border Protection [2018] FCCA 2913
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of last submission/s: 11 September 2024 Date of hearing: 17 April 2025 Place: Adelaide Solicitor Advocate for the Applicant: Michael Arch Solicitor for the Applicant: Duc Mai Lawyers Counsel for the Respondent: Josephine Battiste Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
ADG 302 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THI THOM PHAM
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
11 JULY 2025
THE COURT ORDERS THAT:
1.The name of the respondent be amended to read ‘Minister for Immigration and Citizenship’.
2.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GERRARD:
INTRODUCTION
The applicant seeks judicial review of a decision of a delegate of the respondent (the Minister) to refuse to grant a waiver of ‘no further stay’ condition 8503 (condition 8503). There is no dispute that this Court has jurisdiction. The decision of the delegate was not reviewable under Part 5 of the Migration Act 1958 (Cth) (the Act). As a consequence, it was not a “primary decision” within the meaning of s 476(4) of the Act (see also Zaro v Minister for Immigration and Border Protection [2018] FCCA 2913 at [2] (Zaro)).
For the applicant to succeed in this Court, she must establish that the delegate’s decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found any jurisdictional error in the delegate’s decision. On that basis, her application cannot succeed.
BACKGROUND
The applicant is a citizen of Vietnam (Court Book (CB) 12). On 24 October 2017, she arrived in Australia as the holder of a Visitor (subclass 600) visa (CB 2). That visa was subject to condition 8503, the effect of which being that she would not be entitled to be granted a substantive visa, besides a protection visa, while onshore in Australia.
On 14 October 2022, the applicant applied to the Department of Home Affairs (the Department) for a waiver of condition 8503 in order to enable her to make an onshore application for a partner visa (CB 1-76). The applicant was assisted by a solicitor and the application was supported by relevant documents including statutory declarations from the applicant and her husband, written submissions by her solicitor, photographs and identity documents.
The applicant was previously married to her husband in Vietnam in 2003, where they had two children together and divorced in 2015. The applicant came to Australia in 2017. The husband then remarried and migrated to Australia with the two children and his new wife in 2019. The husband and the two children became permanent residents, however the husband and new wife divorced in 2022. The applicant and her husband resumed living together on 7 September 2021 and subsequently remarried in Australia on 25 May 2022.
The applicant claims that the two children are heavily dependent on her for daily care and emotional support, and that they would suffer significant hardship if they were denied that care and support. If the applicant were required to leave Australia in order to make an offshore application for a partner visa, she claims that it would severely damage her emotional bond with the children, and the applicant’s husband would have to close his business in order to look after the children, which would cause financial hardship for the family. If the children were to leave Australia with the applicant, she claims it would severely disrupt their schooling, even if only temporarily relocating to Vietnam. The husband’s statutory declaration supports the applicant’s claims and confirms that he would sponsor the applicant’s partner visa application.
On 19 October 2022, a delegate of the Minister (the delegate) refused to grant a waiver of condition 8503 on the basis that the applicant did not meet the criteria in sub-regulation 2.05(4) of the Migration Regulations 1994 (Cth) (the Regulations). In particular, the delegate found the applicant’s circumstances to be compassionate but not compelling as required by the Regulations (CB 79-81).
On 22 November 2022, the applicant lodged an application for judicial review in this Court. That application seeks review of the delegate’s decision pursuant to s 476 of the Act.
LEGISLATIVE FRAMEWORK
Section 41 of the Act provides that the Regulations may impose specific conditions on a visa and that the Minister may waive those conditions in specific circumstances. That section 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)a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:
(i) any work; or
(ii) work other than specified work; or
(iii) work of a specified kind.
(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).
…
The terms of condition 8503 are set out in Schedule 8 of the Regulations as follows:
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.
For the purposes of s 41(2A), sub-regulation 2.05(4) sets out the circumstances in which the Minister may waive condition 8503, being a condition of a kind described in paragraph 41(2)(a) of the Act, as follows:
(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.
The Act does not define compassionate or compelling circumstances and it is well established that they are to be given their ordinary meaning (see Boutros v Minister for Immigration and Border Protection (2019) 166 ALD 108 at [22] (Boutros)).
The definition of ‘compassionate’ is not in dispute and is otherwise outlined in the delegate’s decision. Compelling circumstances are defined in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 (Plaintiff M64/2015) as those which “‘force or drive the decision-maker’ ‘irresistibly’ to be satisfied that ‘special consideration’ should be given to granting the particular application” (at [31] per French CJ, and Bell, Keane and Gordon JJ).
THE DELEGATE’S DECISION
The reasons for the delegate’s decision are set out below:
You have made a request for a condition 8503 waiver. I have assessed your request and the reasons for my decision are detailed below. The Minister cannot waive condition 8503 unless the relevant criteria in the Migration Act and the Migration Regulations are satisfied.
The circumstances of subregulation 2.05(4) have not been met by the client on the date I made my decision. Subregulation 2.05(4) states that:
…
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).
The circumstances must be compelling and compassionate
The term ‘compelling’ is not defined in the migration legislation. It must be given its ordinary meaning. ‘Compelling’ means forceful or driving, especially to a course of action. The circumstances must be sufficiently forceful that they lead the decision-maker to make a decision to waive the condition.
‘Compassionate’ circumstances (which are also not defined in the legislation and must be given their ordinary meaning) involve the concept of ‘compassion’ which is a feeling of sorrow or pity for the sufferings or misfortune of others, or sympathy. Compassionate circumstances give rise to these feelings.
I acknowledge the client’s circumstances and her history of her stay in Australia, I have looked into all documents presented including the Statutory Declaration as well as the submission lodged by the client’s migration agent and I find the circumstances to be compassionate in nature, However I must now assess whether compelling circumstances are met.
I acknowledge that the client’s claims of wishing to stay in Australia to reunite with her family, however, the client has not provided substantial evidence of how her circumstances affect her ability to depart Australia prior to the expiry of her visa.
I find that as the borders have reopened that they are able to depart Australia. I find it is reasonable to expect the client to make arrangements to return to their home country and lodge for a Partner visa offshore. Thus, I find that compelling circumstances are not met.
In considering all the information the client has provided to support the request to waive condition 8503 I have assessed these claims against the criteria in Regulation 2.05(4) and am not satisfied the circumstances meet the criteria set out in the Regulations and therefore the condition 8503 has not been waived under sub-section 41(2A) of the Act.
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 22 November 2022 contains two grounds of review as follows (particulars omitted):
1.The Minister’s delegate committed jurisdictional error by failing to understand and address the claims made by the applicant in support of her application for the grant of a waiver of condition 8503 that had been imposed on her relevant Visitor visa.
2.The Minister’s delegate committed jurisdictional error by failing to apply the correct legal test in determining whether the applicant’s application for a waiver of condition 8503 should be granted.
The materials before the Court at the hearing on 17 April 2025 include:
·the application for judicial review filed on 22 November 2022;
·the affidavit of Duc Mai affirmed and filed on 22 November 2022, annexing the delegate’s decision (taken as read and in evidence at the hearing on 17 April 2025);
·the Court Book numbering 81 pages (marked as exhibit 1);
·written submissions filed on behalf of the applicant on 21 August 2024;
·written submissions filed on behalf of the Minister on 4 September 2024; and
·further written submissions in reply filed on behalf of the applicant on 11 September 2024.
CONSIDERATION
The applicant accepted at the hearing that there was clearly an interrelationship between the two grounds. Essentially, the applicant’s argument was that the brevity and paucity of reasons should lead the Court to find, in relation to ground one, that the applicant’s circumstances were not considered and, in respect of ground two, that the delegate did not apply any test in assessing the compelling circumstances.
Ground one
Ground one contends that the delegate failed to understand and address the claims being advanced by the applicant in her application for a waiver of condition 8503. Those claims, which were said to be both compassionate and compelling reasons for a waiver, were set out in the applicant’s statutory declaration as follows (CB 25):
a.My two children have been heavily dependent on me for daily care and emotional support. I cook and prepare meals for them on a daily basis. I pack lunches for them. I wash their clothes. I drop them off and pick them up from school. I take them to sporting and other social activities on a regular basis. I remind them of their obligations to complete their homework before each deadline. I make sure that they take correct medication whenever they are sick. My children would suffer significant hardship if they were no longer able to receive daily care and support from me.
b.My family would be broken again if we were forced to live in different countries for an extensive period of time whilst awaiting the final outcome of my offshore partner visa application.
c.The emotional bond between my children and I would be severely damaged if we were to live apart for an extensive period of time.
d.Our children’s schooling would be severely disrupted if they were to temporarily relocate to Vietnam with me at this stage.
e.My husband, who is currently working as a self-employed farmer and the breadwinner of our family, would have to close down his farming business so as to look after out two children if I were to leave Australia at this stage, in which case our family would suffer financial hardship.
The delegate accepted that the above circumstances constituted compassionate circumstances. That, however, was an insufficient basis for granting the requested waiver. As held by Perry J in Boutros at [19], all of the criteria prescribed by reg 2.05(4) must be met before the power to waive condition 8503 is enlivened; that is, since the applicant had been granted the visa, compelling and compassionate circumstances had developed over which the person had no control and which resulted in a major change to the applicant’s circumstances.
The applicant relied heavily on the authorities of Karan v Minister for Immigration and Border Protection [2017] FCA 872 (Karan) and Farhat v Minister for Immigration and Border Protection (2018) 159 ALD 272 (Farhat), which the Solicitor Advocate for the applicant submitted are directly analogous to this matter. In both Karan and Farhat, the Federal Court held that a failure by the delegate to correctly understand and address the applicant’s claims amounted to jurisdictional error.
Both Karan and Farhat cite with approval the principle set out by the Full Court of the Federal Court in Soliman v University of Technology, Sydney (2012) 207 FCR 277 at [55] that:
Even in the absence of a statutory requirement to provide findings or reasons, a failure to address a submission centrally relevant to the decision being made may similarly found a basis for concluding that that submission has not been taken into account. Such a failure may be exposed in reasons voluntarily provided. And a failure to take into account such a submission may constitute jurisdictional error…
Applying that principle in Karan, Siopis J held (at [27]-[28]) that “[i]t was incumbent on the delegate to understand the claim which was being made in support of the application for the waiver and to address that claim…” and “[t]here is an important difference between a decision-maker being aware of a document and its contents, and understanding and addressing the claim which is made in the document” (citing Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 (Singh) at [58]). Justice Kenny cites both Karan and Singh with approval in Farhat at [32].
There is no dispute between the parties as to the principles of those cases, and the parties are in agreement that if the delegate failed to correctly understand and address a claim being put by the applicant, it would amount to jurisdictional error. The Minister, however, submitted that such a finding is dependent on the facts and that this matter is distinguishable from Karan and Farhat on its facts. The Court agrees with the Minister in that respect.
In Karan, Siopis J found there was a very significant claim which had not been addressed, namely, that the appellant’s wife suffered from severe mental health issues resulting from significant domestic violence, and which was supported by a psychologist’s report (at [29]-[30]):
[29] In this case, it was at the forefront of the appellant’s claims that his wife had been subjected to domestic violence during her first marriage which had left her with “severe mental health issues” and that she had for some time been receiving counselling, that by reason of this preexisting condition and her history of anxiety and depression, trauma and suicide ideation, his wife’s mental health condition could suffer if he, being the stabilising influence in her life, was not there to support her through the difficult time of giving birth and managing a new born baby. This was supported by the expert opinion of Ms Brown, the psychologist.
[30] In other words, the appellant was not making a case, that if he was deported, his wife would suffer emotional distress on the basis only of a separation. The case was a different case, namely, that his wife was a person who had suffered severe physical and mental trauma and had mental health issues and that the separation, in those circumstances, could exacerbate her mental health issues.
Similarly, in Farhat, the appellant was caring for his wife whose mental health issues had become so severe that she required daily care. This was also supported by a psychiatrist’s report. The Federal Court found in that matter that the delegate and the lower court had erred by not understanding and addressing the applicant’s claims in that respect (per Kenny J at [44]):
As I have said, the appellant’s case here was not simply that he wanted to remain with his wife in Australia; that she suffered from stress and anxiety; and that he wanted to maintain his relationship with his youngest step-son. His case was a different one: at the centre of his case was his wife’s mental illness and her need for his ongoing care and support in aspects of daily living; and in this context his case properly embraced the situation of other family members.
In this matter, however, the applicant’s submission that this case aligns with the circumstances in Karan and Farhat is misplaced. As expressed by Judge Driver in Zaro at [13]:
In [Karan], the delegate did not take properly into account expert medical opinion dealing with the applicant’s mental health status. The case was also distinguished by the factual circumstances, including a history of domestic violence in a prior marriage and a young child. This is not that case.
The same is true with respect to Farhat. In both of those decisions, the delegate had not appreciated, in either the claim or the supporting expert evidence in each case, that the appellant’s partner had identified specific and severe mental health issues which would be exacerbated by the appellant’s forced departure.
The gravamen of the circumstances relied upon by the applicant in this matter concern the needs of her children, including their schooling, the family’s emotional bonds, and the concerns for her husband’s business if she were to return to Vietnam. The delegate expressly acknowledged the applicant’s circumstances as outlined in the statutory declaration and in the accompanying submission lodged by the applicant’s representative, and indeed found the circumstances to be compassionate in nature. Those claims were not set out in any detail and, in the Court’s view, fall under the umbrella finding of the delegate that the applicant wished to remain in Australia to reunite with her family. In the Court’s view, the delegate did not misunderstand the claims advanced by the applicant in the same manner as identified in Karan and Farhat.
The delegate also observed that the applicant did not provide “substantial evidence of how her circumstances affect her ability to depart Australia prior to the expiry of her visa”. This also distinguishes this matter from Karan and Farhat where, in each of those matters, the appellant’s claims were supported by objective expert evidence. However, the crucial distinction is that, unlike in Karan and Farhat, there was no misunderstanding of the applicant’s case. In those cases, the delegate erred because the delegate reduced the appellant’s case to a compassionate desire to remain with their family and ignored the claim and the evidence that there would be significant mental health risks in compelling a departure. No such claim was made here. The applicant’s claims simply went to the disruption which would ensue if she pursued her application offshore.
The applicant submitted that the delegate simply set out the relevant test for compelling circumstances and a recitation of the applicant’s claims of wishing to stay in Australia to reunite with her family, but did not otherwise discuss or analyse whether those matters constituted compelling circumstances for the purpose of the waiver.
The Minister, however, submitted that although the delegate’s reasons are brief, there is no reason to infer that the delegate did not evaluate the evidence before it with respect to the applicant’s circumstances. Specifically, where the delegate refers to “how her circumstances affect her ability to depart Australia prior to the expiry of her visa” and the lack of substantial supporting evidence, the Minister submitted that it was appropriate for the delegate to consider the applicant’s circumstances in this way, and further, that it was open to the delegate to find that they did not constitute compelling circumstances (citing Dannawi v Minister for Immigration [2017] FCCA 286).
In Yaacoub v Minister for Immigration and Border Protection [2018] FCAFC 39 (Yaacoub), the Full Court held at [34] that it was important in the review of a delegate’s decision to appreciate that there was no statutory duty to explain why the delegate exercised their power in the way that they did. Furthermore, in Plaintiff M64/2015, the High Court observed at [25] that:
…it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate…the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision.
Importantly in this matter, the delegate identified the evidence and the submissions of the applicant’s representative but found that, whilst the applicant’s circumstances were compassionate, they did not reach the level of being compelling in the sense of being reasons which force or drive the delegate irresistibly to be satisfied that condition 8503 should be waived. That was a rational conclusion to draw from the limited material which was before the delegate. Having regard to the guidance in Plaintiff M64/2015 and Yaacoub, the Court accepts that the delegate was not required to provide comprehensive reasons. What must be evident is that the delegate had considered the claims and evidence relied upon by the applicant. The Court finds that the delegate’s decision reveals that it had identified and considered the material before it and, unlike in Farhat and Karan, there was no misunderstanding of the claims made by the applicant.
Ground one does not establish jurisdictional error.
Ground two
Ground two alleges that the delegate committed jurisdictional error by failing to apply the correct legal test.
Ultimately, this ground appears to be an alternate way of framing ground one. The applicant does not dispute the way in which the delegate sets out the relevant test is inaccurate. Rather, the applicant contended that the delegate failed to correctly apply the test because the delegate did not understand or address the claims made by the applicant in this context, or because the delegate did not engage in a process of analysis.
It is well established that failure to apply the correct legal test or principles when making an administrative decision can amount to jurisdictional error (Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29]; Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [78]).
The applicant submitted that whilst the decision record quotes the text of sub-regulation 2.05(4) of the Regulations and further recognises that a compelling circumstance must be “forceful or driving” or “sufficiently forceful…to make a decision to waive the condition”, the delegate fails to engage in any analysis, discussion or evaluation as to whether the matters in the applicant’s statutory declaration are “compelling” in the sense of being “forceful”. The decision record merely recites that “compelling circumstances are not met”.
The applicant’s representative asserted that the delegate failed to address the substance of the applicant’s claims. He submitted that when one has regard to the delegate’s language, there is no evident analysis as to whether the claims raised by the applicant were compelling. If the delegate were to have addressed and correctly applied the legal test to the applicant’s claims, in the applicant’s view, then there would have been at least “a single word” in the decision record addressing whether any of the claims advanced by the applicant were compelling in the sense of being forceful. The applicant contended that the absence of such words meant that the delegate simply failed to carry out their statutory task.
The Minister submitted that the correct test was described in the delegate’s decision and the reasons were fairly interpreted as considering circumstances put forward by the applicant, together with other matters, to reach the conclusion that it did engage in such an analysis. The use of the word “thus” in particular, at the start of the conclusion, demonstrates a reasoning process by the delegate with respect to compelling circumstances. Whilst acknowledging the brevity of the decision, there is no evidence to suggest, in the Minister’s view, that the delegate did not consider, or misapplied, the relevant test.
In oral submissions, counsel for the Minister contended that the delegate’s reasons should be read as referring to the whole of the family, which provides a further basis to demonstrate the delegate was engaging in a reasoning process where it considered the whole of the family could stay reunited, that is, that they could collectively depart Australia. However, this was not in itself a relevant consideration, acknowledging border closures as a result of COVID-19. In the alternative, even if read as simply referring to the applicant, it was still a relevant consideration for the delegate to make, despite not being a specific issue raised by the applicant.
In the Court’s view, there is no error in either the delegate’s understanding or application of compelling circumstances. In reality, the applicant simply vehemently disagrees with the conclusion reached by the delegate. However, that is an invitation into impermissible merits review. For the reasons stated in respect of ground one, the Court accepts that the delegate considered whether there were compelling circumstances in accordance with the appropriate test, applied that rationally to the evidence which was before it, and reached a cogent and reasonable decision.
Ground two does not establish jurisdictional error.
CONCLUSION
The application for judicial review, supporting affidavit, and written and oral submissions advanced by the applicant have failed to identify any jurisdictional error on the part of the delegate. The Court is otherwise unable to identify any jurisdictional error in the delegate’s decision.
Accordingly, the application is dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 11 July 2025
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