Sleiman v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

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.