On the 14th of March 207, Emmett J in the Federal Circuit Court of Australia in DANNAWI v MINISTER FOR IMMIGRATION  FCCA 286 [(14 March 2017)] discussed an application for review of decision of the Minister based upon a claim for Jurisdictional error in deciding whether the applicants were denied procedural fairness and whether the Minister (his delegate) failed to take into account a relevant consideration.
The decision dealt with s 41(2A) of the Migration Act and Reg.2.05 (4) of the Migration Regulations going to the Minister’s power under s 41(2A) to waive a condition under Regulation 2.05 (4) on the ground that compelling and compassionate circumstances have developed over which the person had no control & that resulted in a major change to the person’s circumstances.
In Terera V Minister for Immigration  FCA Kenny J stated:
“ In a general sense, this is probably correct, although, for my part, I prefer not to put any exegetical gloss, by way of explanation, on the plain words of Reg. 2.05(4)(a).When a visa holder requests the Minister, or Ministerial delegate, to waive a “no further stay” condition imposed on his or her visa, then the question for the decision-maker will be whether, in the particular case, compelling & compassionate circumstances have developed since the visa was granted, over which the visa-holder has no control and resulting in a major change to his or her circumstances. Whether the decision-maker finds that these circumstances exist will depend entirely upon the facts of the case under consideration, particularly the circumstances of the individual visa-holder.” … once the visa was granted.
The Minister’s delegate in fact accepted that the mother had a chronic health condition & circumstances were indeed “compassionate” but failed to decide that the circumstances were “compelling.”
As PAM 3 directed, such as must be “involuntary and characterised by necessity such that the visa holder is faced with situation and where there is little or no alternative but to seek to extend their stay in Australia.”
The compelling and compassionate circumstances involved the applicant’s 88 year old widowed mother who required care from the applicant for a serious medical condition requiring assistance on a “day to day” basis and that the applicant was the only person available to act as her mother’s carer and her siblings were unable to assist with the care.
The applicant relied on Thongpraphai v The Minister for Immigration  FCA which it was held:-“There is little doubt that both words [“compelling and compassionate”] call for the occurrence of an event or events that are far-reaching and most heavily persuasive. Incidental matters are not to be taken into account except where it is appropriate to have regard to their totally.” (O’Loughlin J)
The court held that a waiver of 8503 could not be granted by interpreting Reg. 2.05(4) narrowly, by deciding that the visa holder did have alternatives to remaining in Australia. The original delegate’s decision refused to recognise “compelling” circumstances as the elderly mother did not require constant care nor that the visa holder was needed to provide care to her mother.
This is yet another example of the very narrow interpretation of “compelling” under Reg. 2.05(4). Applications for a waiver of “no further stay” condition 8503 are complex and require experienced and detailed preparations. The service of an experienced Registered Migration should be sought.