Federal Court of Australia

Sleiman v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 459

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an appeal from the decision of the Federal Circuit Court refusing constitutional writ relief to the appellant in respect of the decision of a delegate of the Minister made on 23 March 2018 to refuse to waive a no further stay condition 8503 on his expired visitor’s visa: Sleiman v Minister for Immigration [2019] FCCA 3294.

2    The appellant is a citizen of Lebanon who was born in 1956. He arrived in Australia on 4 March 2013 on a UL 679 sponsored family visitor visa that allowed a single-entry visit for 45 days in total. Despite his visa expiring on 18 April 2013, he has remained in Australia ever since.

The legislative scheme

3    Relevantly, s 41(2A) of the Migration Act 1958 (Cth) provides:

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).

4    The Migration Regulations 1994 (Cth) prescribe reg 2.05(4) 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.

5    Condition 8503 in Sch 8 of the Regulations provides:

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.

The delegates’ decisions

6    On 20 December 2017, the appellant applied for a no further stay waiver request, relying on intended medical treatment for his hearing impairment, anxiety and depression (the first request).

7    On 4 January 2018, a delegate of the Minister (the first delegate) refused the request and gave written reasons for the refusal (the first decision). The first delegate found that the appellant’s health conditions were compassionate, but did not consider his circumstances to be compelling within the natural and ordinary meaning of that word for the purposes of reg 2.05(4)(a). The first delegate was not satisfied that the appellant would be unable to seek treatment in Lebanon if required, or that his circumstances were sufficiently forceful to waive the no further stay condition, and accordingly refused the request.

8    On 8 March 2018, the appellant made a second no further stay waiver request, in which he outlined substantially the same health conditions as in the first request (the second request). He attached a report by a doctor, as an allied health professional, that diagnosed him to have major depression and adjustment disorder. The report noted that the appellant had attended six appointments with his treating doctor, had been educated on how to manage his insomnia and anxiety and had been given skills to cope with his depression and fears that treatment may be unavailable if he returned to Lebanon.

9    On 23 March 2018, a second delegate refused the second request (the second decision). The second delegate found that the circumstances for waiver of condition 8503 were not met by the second request. The second delegate set out reg 2.05(4) and addressed its requirements. He found that, for the purposes of reg 2.05(4)(a), the claims were based on the same fears of suffering from anxiety, depression and the unavailability of treatment in Lebanon, as had founded the first request. The delegate considered the report from the treating doctor and the doctor’s statements noted above. The second delegate was satisfied that the appellant had the skills to manage his mental health conditions based on the report and had addressed his psychological options for returning to Lebanon. He found that the appellant’s circumstances were not sufficiently forceful to warrant waiver of the no further stay condition.

10    The second delegate then addressed the requirements of reg 2.05(4)(b) and was not satisfied that the circumstances set out in the second request were substantially different from those in the first request.

11    For those two reasons, the second delegate refused the second request.

The application to the Federal Circuit Court

12    On 26 April 2018, the appellant applied to the Federal Circuit Court for review of the second delegate’s decision to reject the second request. The application set out three grounds, namely, that:

(1)    the second delegate had overlooked the seriousness of the appellant’s depression and inability to receive medical treatment in Lebanon because of the current situation and non-availability of treatment there.

(2)    his circumstances were sufficiently forceful to warrant a waiver, contrary to the second delegate’s assessment.

(3)    the appellant had applied for a medical treatment visa, but the Minister’s Department had failed to accept his application because of condition 8503.

13    On 31 October 2019, the appellant appeared on the hearing of the application, assisted by his son, as he has again today. Her Honour delivered oral reasons at the conclusion of the hearing that were revised from the transcript and published on 21 November 2019.

14    After setting out the facts, the grounds for the review and the legislative criteria, her Honour identified the appellant’s arguments that he had made orally through his son, namely that the appellant could not go back to Lebanon because his house there had been destroyed and he was concerned that he would die. The appellant informed her Honour that his wife remained in Lebanon. His son submitted to her Honour that the second delegate had not taken into account the medical reports or given them appropriate weight. The son argued that his father’s medical condition had been before the second delegate and should have been taken into consideration in allowing him to stay in this country.

15    Her Honour found that the second delegate, in fact, had considered the appellant’s medical condition, as set out in the medical report with the second request, and also the appellant’s ability to seek medical treatment, were he to return to Lebanon. The trial judge also found that the second delegate had considered the requirements of reg 2.05(4)(b) because he had noted that he was dealing with the second request and that it was based on the same reasons as the first request, and was not satisfied that the circumstances of the second request were substantially different from the first.

16    The trial judge found that, on the basis of the material before him, it was open to the second delegate to find that the appellant’s circumstances had not changed substantially since his first request. Accordingly, she found that the second delegate had not made any jurisdictional error under either reg 2.05(4)(a) or (b), and rejected ground 1.

17    Her Honour rejected ground 2 on the basis that it sought to argue about the merits of the second delegate’s findings of fact as to whether or not he was satisfied that the reasons were compelling, and this provided no ground for the Court to review the second delegate’s decision.

18    Her Honour rejected ground 3 on the basis that the appellant’s reliance on the rejection of his application for a medical treatment visa was irrelevant to the exercise of the second delegate’s discretion whether or not to waive condition 8503.

19    Her Honour also considered the additional arguments that the appellant and his son had made orally to her about the appellant’s safety were he to return to Lebanon and the circumstances of his destroyed house. But, she found, those matters were not before the second delegate and therefore were not relevant to her Honour’s judicial review of the second delegate’s decision.

This appeal

20    On 11 November 2019, the appellant filed a notice of appeal that contained the following three grounds:

1. I appeared before Her Honour … and I am unrepresented. I honestly could not argue my case because of my memory problems.

2. I am now assisted by my son … and I have not received the judgment yet.

3. I will provide more information when I receive the judgment and will be read to me by my son.

21    There has been an unfortunate delay in the hearing of this appeal caused by the impact of the coronavirus pandemic and the difficulties of having in-person hearings with litigants in person assisted by interpreters, as in this case.

22    The appellant has not filed any application to amend or any amended notice of appeal since the publication of her Honour’s settled reasons on 21 November 2019.

23    The appellant and his son appeared today before me and repeated the same arguments that they had put to her Honour as to why the second delegate’s decision was in error. In addition, the appellant told me that his vision and his overall health had been deteriorating, and that he needed medical treatment, blood tests and other medical intervention.

24    For the same reasons as her Honour gave, while those health issues are unfortunate, they are not matters which the Court can take into account in reviewing whether or not the second delegate made a jurisdictional error in the way in which he approached and determined the second request.

25    The function of the Court on an application for judicial review of a decision of an administrative decision-maker such as the second delegate is to determine whether the decision was one which the decision-maker was authorised to make and it was made according to law. That function is not like an appellate procedure that enables either a general review of a decision or the substitution of another decision which the Court thinks should have been made, as French CJ, Bell, Keane and Gordon JJ explained in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 184–185 [23].

26    Crucially, in order to be granted the second request, the appellant had to satisfy the second delegate in respect of each of the criteria in reg 2.05(4)(a) and (b). Because the conjunction “and” is used after each of subpars (a) and (b) in reg 2.05(4), those conditions are cumulative. Both must be satisfied in order to enliven the power of the Minister or his delegate to waive condition 8503, as Perry J held in Boutros v Minister for Immigration and Border Protection [2019] FCA 851 at [19].

27    Having considered the arguments of the appellant and his son, the reasons given for the first and second refusals and her Honour’s reasons, I am unable to see any arguable jurisdictional error in the second decision.

28    Importantly, the second delegate appreciated that the requirements of both subpars (a) and (b) of reg 2.05(4) had to be satisfied in order for the second request to be granted. The second delegate considered the material before him, including the medical report. He concluded that the appellant had the skills to manage his mental health conditions and had addressed his psychological options were he to return to Lebanon, so that his circumstances were not sufficiently forceful to warrant waiver of the no further stay condition for the purposes of reg 2.05(4)(a). That conclusion was open to the second delegate on the material before him. He did not take into account any irrelevant consideration, fail to take into account a relevant consideration or misunderstand the legal considerations to which he had to have regard in arriving at the second refusal.

29    It was also open to the second delegate to arrive at the finding that the circumstances of the second request were not substantially different from the first for the purposes of reg 2.054(b).

30    As the trial judge pointed out, each of the two separate findings of the second delegate was itself sufficient to justify the refusal of the second request based on what Perry J had held in Boutros [2019] FCA 851 at [19], with which I agree.

31    For the same reasons, none of the additional circumstances personal to the appellant which he and his son identified in argument today have any bearing on the exercise of the Court’s jurisdiction to review the delegate’s decision and are irrelevant.

32    The grounds of appeal before me raised no matter which would warrant any appellate intervention in the decision of the trial judge.

33    In civil proceedings, there is no right to legal representation, so that ground 1 cannot succeed. Moreover, the appellant never requested that her Honour adjourn so that he could have an opportunity to seek legal representation and he has made no such application to me. I am not able to perceive any unfairness or circumstance in the way in which her Honour dealt with the arguments that the appellant and his son presented to her that would warrant a conclusion that the trial miscarried: NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27], per Farrell, Wigney and Perry JJ.

34    Grounds 2 and 3 in the notice of appeal do not raise any arguable ground of appeal either. The appellant received the settled reasons of the trial judge at some stage not long after 21 November 2019, and in the intervening period of over two years, has not sought to amend the grounds of appeal or identify anything further that could be said in support of them other than the oral submissions which he and his son made, and I have considered today: Minister for Immigration, Citizenship, Migrant Services, Multicultural Affairs v AAM17 (2021) 388 ALR 257 at 270–271 [40]–[45] per Steward J with whom Kiefel CJ, Keane, Gordon and Edelman JJ agreed. Nor has the appellant provided any medical evidence to suggest that his memory problems affected his ability to present his case below or to me. In any event, he has been assisted by his son today, as he was before her Honour, so that such arguments as he may have had available to him have been able to be put.

Conclusion

35    For those reasons, I am unable to see any arguable error in the way in which her Honour dealt with the arguments in support of grounds 1, 2 and 3, and the general additional circumstances on which the appellant and his son relied before her.

36    Accordingly, none of the grounds of appeal give rise to any reason for setting aside the orders made by the trial judge and the appeal must be dismissed with costs.

Associate:

Dated:    28 April 2022