Sleiman v Minister for Immigration

[2019] FCCA 3294

FEDERAL CIRCUIT COURT OF AUSTRALIA

SLEIMAN v MINISTER FOR IMMIGRATION [2019] FCCA 3294

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Applicant for judicial review had been granted a visitor visa subject to condition 8503 “No Further Stay” – second request to Minister to waive the condition – Delegate of Minister declines waiver application because circumstances not “compelling” and not “over which the applicant had no control” under reg.2.05(4) of Migration Regulations 1994 (Cth) – application to this Court for judicial review of Delegate’s refusal – delegate correctly construed reg.2.05(4) – no jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.41

Migration Regulations 1994 (Cth), reg.2.05(4)

Boutros v Minister for Immigration and Border Protection (2019) FCA 851

Applicant: TALEB DIAB SLEIMAN

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

File Number: SYG 1185 of 2018

Judgment of: Judge Baird

Hearing date: 31 October 2019

Date of Last Submission: 24 October 2019

Delivered at: Sydney

Delivered on: 31 October 2019

REPRESENTATION

Solicitors for the Applicant: The Applicant appeared in person

Solicitors for the Respondent: Mr S. Valliapan, DLA Piper

ORDERS

1. AMENDS the name of the Respondent to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. DISMISSES the application.

3. ORDERS that the Applicant pay the Respondent’s costs fixed in the sum of $3,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1185 of 2018

TALEB DIAB SLEIMAN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

(ex tempore, revised from transcript)

1. This is an Application for judicial review of a decision of a Delegate of the Respondent, then the Minister for Home Affairs, made 23 March 2018 to refuse to waive Condition 8503 to the Applicant’s Sponsored Family Visitor (Subclass 679) Visa. 

Background

1. The Applicant, Mr Taleb Diab Sleiman, is a Lebanese citizen born in 1956, making him 62 years old.  Mr Sleiman came to Australia on 4 March 2013 on the Visa, which was subject to Condition 8503, which is known as the “no further stay condition”.  That Visa was due to expire on 18 April 2013.  The no further stay condition precludes Mr Sleiman from applying for another visa except a protection or specified temporary visa allowing him to remain in Australia after his Visa expired. 

Delegate’s Decision

1. On 20 December 2017, Mr Sleiman applied to have the Condition waived.  The basis of his request was (without alteration):

   (a)MY HEALTH HAS DETERIORATED AFTER I ARRIVED IN AUSTRALIA.  I HAVE HEARING IMPAIRMENT, ANXIETY, DEPRESSION.

   (b)I DID NOT WISH MYSELF TO BECOME SICK AND TO SUFFER DEPRESSION AND ANXIETY.

   (c)BECAUSE IS HAVE MEDICAL CONDITION AND UNABLE TO RECEIVE TREATMENT IN LEBANON. PLEASE REFER TO FORM 1507.

2. Accompanying that first request was a Form 1507, which was signed by his examining doctor, and identified the medical condition requiring treatment as (without alteration):

   (1)Hearing Impairment

   (2)Anxiety Depression,

   and the treatment information as: “Need ongoing treatment under specialist for Ear-Nose & Throat and psychologist.”

3. The Delegate refused this first request on 4 January 2018. 

The second request and the Delegate’s decision

1. Mr Sleiman applied again for a no further stay waiver request by application dated 5 March 2018, received by the Department on 8 March 2018.  He attached a medical certificate and letter.  Mr Sleiman in his second request again claimed his health was not good.  He set out his details and the reasons as follows (without alteration):

   (a)My health is not good anymore, I need medical treatment.

   (b)I was in good health when I came to Australia.  I applied for medical treatment.  The Department refused to accept my application because of 8503 condition.

   (c)I cannot receive medical treatment in Lebanon.  My health is critical.  I have compelling reasons as I wish to continue medical treatment in Australia which is not available in Lebanon. 

2. As I have said, accompanying this application was a letter from an Allied Health Professional, Dr Mahmoud Abu-Arab, to Mr Sleiman’s general practitioner dated 1 March 2018.  The letter stated that Mr Sleiman had attended six appointments in which he was educated on how to manage and cope with his mental health conditions, namely his insomnia and anxiety.  Dr Abu-Arab stated:

   He was given skills to cope with his depression and fears.  He was motivated and supported.

3. Dr Abu-Arab further stated:

   In treatment, we addressed his psychological issues and his limited options if he had to return to Lebanon.  Preoccupation with thoughts related to the possibility of refusing his application to remain in Australia is an obstacle to treatment.

4. The practitioner concluded, recommending that Mr Sleiman be reviewed by his general practitioner and that he would benefit from further treatment.

5. Turning to the Delegate’s decision, the Delegate noted that this was the client’s second request based on the same reasons.  After setting out the relevant legislative criteria, under the sub heading: “The circumstances in the current request must be substantially different from those considered previously.” (at page 2 of the Delegate’s decision).  The Delegate stated, as follows: 

   The client's claims in this 8503 request are again based on his claims of suffering from anxiety and depression and fears treatment may be unavailable in Lebanon. The client has provided an Allied Health Professional (AHP) report from Dr Mahmoud Abu-Arab dated 01/03/2018 which confirms the client is receiving treatment for depression and adjustment disorder. I have considered this document which states that the client has attended six sessions, has been educated on how to manage his insomnia and anxiety as well as to cope with his depression and fears. I also consider Dr Abu-Arab's statement 'In treatment we addressed his psychological issues and his limited options if he had to return to Lebanon'. Therefore, as I am satisfied the client has skills to manage his mental health and I am satisfied the client has addressed with his psychologist options for returning back to Lebanon, I do not consider the client's circumstances are sufficiently forceful to waive the no further stay condition.

6. The Delegate concluded:

   Having considered the circumstances of this second request under paragraph 2.05(4)(b) of the regulations [that is the Migration Regulations 1994 (Cth)] I am not satisfied that they are substantially different.

7. Accordingly, the Delegate found that reg.2.05(4) was not met and refused the request.

The Proceeding in this Court

1. Mr Sleiman applied to this Court on 26 April 2018.  Mr Sleiman raises three grounds of review as follows (without alteration):

   1.The Delegate of the Minister overlooked the seriousness of my depression and the inability to receive medical treatment in Lebanon because of the current situation and the non availability of treatment.

   2.My circumstances are sufficiently forceful contrary to the comments of the delegate.

   3.I applied for medical treatment visa and the Department failed to accept my application because of condition 8503.

Legislative Criteria

1. I first turn to the relevant legislative provisions. Section 41(1) of the Migration Act 1958 (Cth), the Regulations are authorised to provide that visas, or visas of a specified class, are subject to specified conditions (see also s.41(2)(a)). Condition 8503 is a condition envisaged by s.41(2)(a) of the Act. Condition 8503 states 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.

2. Section 41(2A) permits the Minister, or his delegate, in prescribed circumstances, to waive a condition such as Condition 8503. Those circumstances are set out in reg.2.05(4) of the Regulations as follows:

   (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.

3. Accordingly, to obtain a waiver of Condition 8503, Mr Sleiman was required to establish that “compelling and compassionate circumstances” had occurred, over which he had no control, and which had resulted in a major change to his personal circumstances. 

4. As this was his second request for waiver, reg.2.05(4)(b) requires that the Minister be satisfied that the compelling and compassionate circumstances asserted by the applicant, here Mr Sleiman, in support of the request for waiver, were such that they were substantially different from those considered previously, that is, under the first waiver request.

The hearing before me today

1. Before me today, Mr Sleiman appears unrepresented, but with the benefit of an interpreter in Arabic and English.  Mr Sleiman is supported by his adult son, and at his son’s request, and without objection by Mr Valliappan, who appears for the Minister, I granted leave to Mr Sleiman Junior to speak for his father today, and I received oral submissions from Mr Sleiman Junior.  Mr Sleiman Junior submitted that his father could not express himself and represent himself well, being under stress, and his son emphasised his father’s depression.

2. Through his son, Mr Sleiman made oral submissions.  I should note that Mr Sleiman did not file any evidence, other than the Delegate’s decision.  Mr Sleiman’s oral submissions made on his own account and through his son were to the effect that he could not go back to Lebanon, his house in Lebanon is in a very sensitive area, and it has been destroyed three or four times already, and he was concerned that he would die.  Mr Sleiman did inform me that his wife remains in Lebanon.  Mr Sleiman Junior made submissions directed to grounds 1 and 2, principally that the Delegate did not take into account the medical reports, did not give weight to the medical reports, and the medical condition that had been given to the Delegate.  Mr Sleiman then reiterated his request that his case be taken into consideration, and he asked to be treated here.  

3. Mr Valliappan drew my attention to the decision of Perry J in Boutros v Minister for Immigration and Border Protection (2019) FCA 851, and specifically at [19], [25], and [26]. At [19], her Honour considered the structure of reg.2.05(4) and the criterion prescribed, and said:

   First, it is apparent from the structure of regulation 2.05(4) and the use of the word “and” after each criterion prescribed by regulation 2.05(4) that all of the criterion specified in sub regulation (4) must be made before the Minister, and, therefore, her or his Delegate has power to the condition …

4. In Boutros, her Honour was concerned with two of that delegate’s findings, and concluded that any one of the findings would constitute an independent and sufficient ground for upholding the decision, and that, unless, therefore, the appellant can successfully appeal all of the findings, the validity of the decision must be upheld. 

Ground 1

1. Ground 1 is, in substance, an argument that the Delegate failed to consider the arguments in the material put before them.  Contrary to Mr Sleiman’s allegation, and the submissions made orally today, it is apparent from the Delegate’s decision which I have quoted above, that the Delegate did, in fact, consider the medical report submitted by Mr Sleiman, and the content of his application. 

2. It is apparent from the Delegate’s decision, that the Delegate noted that Mr Sleiman had learned how to cope and manage with his insomnia, anxiety and depression (see above extract at [7] and [8]).  The Delegate also considered Mr Sleiman’s ability to seek treatment in Lebanon, and inferred from the psychologist’s report that, although the options in Lebanon may be limited, there were still options open to him.  The Delegate concluded that Mr Sleiman, was equipped with coping skills, or has skills to manage his mental health, and was satisfied that Mr Sleiman has addressed with his psychologist options for returning to Lebanon.

3. Accordingly, it seems to me clear that the Delegate did consider Mr Sleiman’s evidence and his circumstances for medical treatment were he to return to Lebanon. 

4. Further, as this was the second request that Mr Sleiman made for a waiver, the Delegate also had to be satisfied that Mr Sleiman’s circumstances since the first waiver request had been refused, were substantially different.  I note that the Delegate said, in the introductory paragraphs of the decision: “This is the client’s second request based on the same reasons.”

5. At the first sentence of that part of the Delegate’s decision I have already set out above (see at [10]), the Delegate also reiterated that:

   The claims in this 8503 request are, again, based on his claims of suffering from anxiety and depression and fears treatment may be unavailable.

   The Delegate, having considered the requests:

   Was not satisfied that they are substantially different.

6. I consider that it was open to the Delegate on the basis of the material before him to find that Mr Sleiman’s circumstances had not substantially changed since his first request.  That material before the Delegate comprised Mr Sleiman’s two waiver requests, the accompanying form 1507 to the second request, and the psychologist’s report.  Adapting what her Honour Perry J said in Boutros at [19]: Either of the delegate’s findings [see findings at [24] and [26] above] would constitute an independent and sufficient ground for upholding the decision.  Unless the Applicant can successfully challenge both findings, the validity of the decision must be upheld.

7. By reasons of my findings above, I conclude that ground 1 fails. 

Ground 2

1. Turning to ground 2, Mr Sleiman contends that his circumstances were sufficiently forceful to justify waiver.  By this ground, Mr Sleiman seeks to argue that the Delegate made a wrong conclusion based upon the material before it.  The question of whether something is compelling is one for the Minister, pursuant to the Act.  It involves some level of judgment by an individual decision maker, namely, in the present case, the Delegate.  That question is not one for the Court to decide (see Boutros at [25] and [26], and the authorities referred to therein). It follows that ground 2 is not made out.

Ground 3

1. As to ground 3, which states that Mr Sleiman applied for a medical treatment visa, and that the Department refused it on the basis of Condition 8503, the fact that Mr Sleiman had applied for a medical treatment visa, which was invalid on the basis of a no further stay condition imposed on Mr Sleiman’s Visa, has no bearing on the lawfulness of the Delegate’s decision under review.  It is not a ground available in this Court.  Ground 3 is not made out. 

Conclusion

1. I have referred to the additional arguments made in Mr Sleiman’s and his son’s oral submissions today ‑ the matter of Mr Sleiman’s safety in Lebanon and the circumstances of his house.  These were not matters that were put before the Delegate, and accordingly they are not relevant to this proceeding for judicial review of the Delegate’s decision. 

2. It follows that, unfortunately for Mr Sleiman, in my view, all three grounds fail to establish jurisdictional error, and, as I have foreshadowed, the Application must be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Baird

Associate:

Date: 21 November 2019