BEE24 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 799
•30 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BEE24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 799
File number: SYG 441 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 30 August 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – Temporary Protection (Subclass 785) visa – invalid s 375A Certificate – where the applicant claimed there was discriminatory access to medical services in receiving country - whether the applicant was a member of a particular social group – whether the Tribunal failed to exercise its jurisdiction – whether there was a failure to provide procedural fairness – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 189, 375A Cases cited: BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 73 ALD 321
Ganegoda v Minister for Immigration & Anor [2020] FCCA 135
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Plaintiff M1/2021 [2022] HCA 17; 96 ALJR 497
Singh v Minister for Home Affairs [2019] FCAFC 3
SZNOE v Minister for Immigration and Citizenship [2012] FCA 96
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593
Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 21 August 2024 Place: Parramatta Counsel for the Applicant: Mr Jones Solicitor for the Applicant: Nikjoo Lawyers Counsel for the Respondents: Mr Riley Solicitor for the Respondents: Hunt & Hunt Lawyers ORDERS
SYG 441 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BEE24
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
30 AUGUST 2024
THE COURT ORDERS THAT:
1.Leave is granted for the First Respondent to file the Affidavit of Nameeta Chandra sworn on 14 August 2024 in Court on 21 August 2024.
2.The Applicant’s Amended Originating Application filed on 24 July 2024 is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,500.00.
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 D HUMPHREYS:
INTRODUCTION
The applicant is a citizen of Tonga. He first arrived in Australia on 29 April 1981 on a temporary visa valid for three months. The applicant overstayed and became an unlawful non-citizen. He was removed from Australia on 13 April 1991, following a sentence of three years imprisonment following a conviction of sexual assault. The applicant returned to Australia in January 1992, as a stowaway, and remained as an unlawful non-citizen.
The applicant was granted a bridging visa on 18 March 2008. On 31 March 2008, he applied for a spouse visa which was later refused.
On 12 February 2020, the applicant was remanded in criminal custody for multiple offences. On 1 October 2021, he was convicted of four serious driving offences, involving the death of a person, and sentenced to five years, six months imprisonment with a non-parole period of three years and eight months.
On 11 October 2023, the applicant was released from criminal custody, detained under s 189 of the Migration Act 1958 (Cth) (“the Act”) and transferred to immigration detention. The applicant applied for a permanent protection visa, but this application was deemed invalid. The applicant also applied for a Temporary Protection (Subclass 785) visa (“the visa”) on 7 November 2023.
On 30 November 2023, a delegate of the then Minister for Home Affairs (“the delegate”) refused the visa. The applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) on 6 December 2023 for merits review of the delegate’s decision. On 12 January 2024, he appeared before the Tribunal for hearing by way of video.
On 22 February 2024, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa.
The applicant now seeks judicial review of the Tribunal’s decision. For the reasons set out below, the application must be dismissed.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
The Tribunal at [6] to [10] set out the criteria and components required for a protection visa as contained in ss 5H, 5J, and 36 of the Act. The Tribunal also confirmed at [11], in accordance with Ministerial Direction No.84, that they had taken account of the “Refugee Law Guidelines” and “Complementary Protection Guidelines” prepared by the Department of Home Affairs (“the Department”), and country information prepared by the Department of Foreign Affairs and Trade (“DFAT”) to the extent they were relevant to the decision.
The Tribunal accepted at [19] and [20] that the applicant is a national of Tonga, which is his receiving country. The applicant does not have a right to enter or reside in any third country.
The Tribunal set out the documents the applicant provided, which they had considered at [12] to [17]. The Tribunal summarised the applicant’s claims made with his visa application at [21] and [22] as follows:
21. In his Protection visa application, the applicant claims that:
a.He came to Australia with his parents in 1981. They arrived in Australia looking for a better life; and
b.He has been suffering from diabetes for over 16 years. His condition has been manageable in Australia, but in Tonga, more than 15,000 people suffer from the disease. Not all people who suffer from diabetes in Tonga have been seen by medical practitioners or received proper treatment. If he returns to Tonga, he will wait months to see a nurse or doctor. Medication is low and healthcare in Tonga is poor. Nurses and doctors help their own family first. He does not have a family in Tonga, so he will be last to be seen on the 15,000 people waiting list.
22. In response to whether he would be able to relocate within his country to avoid the claimed harm, the applicant stated no and claimed that ‘last year’ Tonga had one of the biggest volcanic eruptions in the world. Many islands ‘went up in smoke’ and a tsunami destroyed houses and land. He claimed that there are no houses and land, and he has no family in Tonga.
At [23] to [26], the Tribunal outlined the delegate’s decision, and then set out the applicant’s relevant evidence at [27] to [51] including the evidence of his two witnesses.
Under the title “Reasons and Findings”, the Tribunal made a number of findings concerning the applicant’s circumstances including that:
(a)Of the applicant’s siblings, 11 live in Australia and are Australian citizens. One lives in New Zealand. The applicant has a wife and three children who live in Western Australia. The children of the marriage are Australian citizens.
(b)The applicant would prefer to live in Australia as it is where almost all his siblings, his extended family and children live. The Tribunal also accepted that the applicant has lived in Australia since the age of 12.
(c)The applicant has no immediate family living in Tonga.
(d)The applicant has been diagnosed with diabetes, dyslipidaemia (high cholesterol), and hypertension. The applicant receives treatment by way of ongoing medication for these conditions as well as atrial flutter or arrhythmia.
(e)The applicant is concerned that if he returns to Tonga, he will not be able to receive the same standard of treatment for his conditions.
(f)The applicant’s family came to Australia to look for a better life.
(g)There was no evidence before the Tribunal that the applicant suffered persecution in Tonga for reasons of his race, religion, nationality, membership of a particular social group, or his political opinion. Accordingly, the Tribunal found that the applicant did not suffer harm in Tonga for a Convention related reason.
The Tribunal continued, under a sub-heading of “Does the applicant have a well-founded fear of persecution if he returns to Tonga?” to address the applicant’s claims in relation to access to healthcare, his lack of family or housing in Tonga, difficulties he would face finding employment, and the applicant’s other miscellaneous claims.
The Tribunal set out, based on relevant country information, the general circumstances of Tonga in relation to its health care and access to health care related resources at [59] to [62]. Following this, the Tribunal considered the applicant’s claims and found that:
(a)A range of medications for diabetes, high blood pressure, and cardiac arrythmias are on the current Standard Treatment Guidelines and Essential Drug List for Tonga. Country information indicated that the applicant would be able to access medical services for each of his conditions, as well as medications, free of charge in Tonga.
(b)The Tribunal accepted that the applicant’s sister attempted to contact a doctor at a Tongan hospital and that she may have been advised of a wait time of between six to nine months for bookings for diabetes.
(c)The Tribunal accepted that medical services in Tonga may not be as extensive or as sophisticated as those in Australia and that wait times may be longer. However, the Tribunal found that there was no compelling information to indicate the applicant would be denied access to basic medical services or medication for the conditions he suffers.
(d)While considering the applicant’s evidence, the Tribunal preferred the country information regarding Tongan’s access to healthcare, that it is free of charge, that physical access is good for the majority with the exception of small populations on isolated islands. Noting that the applicant was from the largest island of Tonga and there was nothing to indicate that he would move to an isolated island on returning. The Tribunal was not satisfied that the applicant would be denied access to medical treatment or to medication in Tonga for any of the reasons set out in s 5J(1)(a) of the Act at the time of the decision or in the reasonably foreseeable future.
The applicant’s claim regarding his lack of family, home or land ownership in Tonga was considered by the Tribunal at [66] to [69]. The Tribunal accepted that the applicant did not own any land in Tonga. After considering the applicant’s claims in relation to a 2022 volcanic eruption, the Tribunal accepted that land owned by his father was passed down to his oldest brother to rent to others. As the applicant did not provide any specific evidence that the land was or continues to be affected by the 2022 eruption/tsunami and he has no rights in respect of this land, the Tribunal did not find that the applicant has been denied access to land or a home for any of the reasons set out in s 5J(1)(a) of the Act. Such that, he would not be denied access to resources for a s 5J(1)(a) reason in the reasonably foreseeable future. The Tribunal, noting the applicant’s evidence, found there was nothing to suggest that the passing down of the land to the eldest son involved an element of persecution.
In respect of the applicant obtaining employment, the Tribunal accepted that he may have difficulty obtaining work as a driver in Tonga. Further, his criminal record (which in part related to previous work as a truck driver) may also act as an obstacle to him finding future work in this field or as a driver generally. The Tribunal found that while the applicant may have difficulties in finding work, there was no convincing information to indicate that the applicant would be denied the capacity to earn a livelihood of any kind, such that it would threaten his capacity to subsist. The Tribunal found there was insufficient evidence to indicate that the applicant would experience significant economic hardship, threatening his capacity to subsist. It is more likely that the applicant will receive financial support from his siblings in the form of remittances, noting the witness evidence and character statements that the applicant has previously assisted members of his extended family and community.
The Tribunal’s consideration and findings in respect of the applicant’s other miscellaneous claims included:
(a)The claim that the applicant was wrongly accused of rape, resulting in his deportation in 1991, and that if he had not been accused then he would have been eligible for Australian citizenship. As part of this claim was the claim by the applicant’s sister that the Department did not correctly notify the applicant in respect of his spousal visa until 2021. The Tribunal, while commenting that it was regretful that the applicant was not effectively notified, determined that it did not go to the questions it must answer in the review. Similarly, the Tribunal found that the applicant’s eligibility for citizenship if not convicted was speculative and did not go towards the questions it must answer.
(b)The Tribunal noted the various character references from the applicant’s nephew, a named person, and his pastor. The Tribunal considered these character references, but found that they did not assist the applicant in relation to the questions the Tribunal must answer.
(c)It was noted that the applicant had attempted to make a life for himself in Australia. The Tribunal accepted this and that it included him marrying and having three children. However, the Tribunal found, these circumstances did not assist the applicant with the issues in question.
Accordingly, the Tribunal, having considered the applicant’s claims, individually and cumulatively, together with the evidence, found there was no real chance that the applicant will suffer serious harm amounting to persecution from anyone for any reason on return to Tonga now or in the reasonably foreseeable future. The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
The Tribunal then considered whether Australia had any obligations towards the applicant under the complementary protection criterion at [78] to [84]. The Tribunal found that:
(a)In view of other findings, the Tribunal was not satisfied there is a real risk the applicant will suffer significant harm for any of the reasons, or combination of reasons, claimed if he returns to Tonga now or in the reasonably foreseeable future. The Tribunal did not accept that the applicant will experience significant harm on the basis of his medical conditions or claims about inadequate medical services and medication in Tonga.
(b)Considering whether the applicant’s claims amount to being arbitrarily deprived of life as a result of inadequacies in the Tongan medical system, the Tribunal found that there was no compelling information to indicate the applicant would be denied medical treatment or medication on an arbitrary basis. Further, the risk of harm due to any limitations to the health care services in Tonga for the types of conditions suffered by the applicant are ones faced by the population generally. The Tribunal found that there was insufficient evidence to indicate the applicant would experience serious harm on the basis of any of his medical conditions.
(c)There was insufficient evidence indicating that the applicant would experience serious harm on the basis of not having family or land in Tonga, or on the basis of any residual economic claims.
Consequently, the Tribunal was not satisfied that there is a real risk the applicant would be arbitrarily deprived of life, or that the death penalty will be carried out on him, or he would be subjected to torture or cruel or inhuman treatment or punishment, or he would be subject to degrading treatment or punishment if he returns to Tonga, now or in the reasonably foreseeable future. The Tribunal was not satisfied there is a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act. The Tribunal found that the applicant did not satisfy the criterion in s 36(2)(aa) of the Act.
The Tribunal affirmed the decision of the delegate not to grant the applicant the visa.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review are contained in the Amended Originating Application filed on 24 July 2024. The three grounds raised by the applicant are:
1.The Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claim based on discriminatory refusal of medical services and medication in Tonga.
2.Further or in the alternative, the Tribunal asked itself the wrong question and thereby constructively failed to exercise its jurisdiction.
3.Further or in the alternative to 1 and 2, the Tribunal committed jurisdictional error due either to the provision of an invalid certificate under section 375A of the Act or the failure of the Tribunal to advert to the existence of the certificate for the purposes of the review.
THE APPLICANT’S SUBMISSIONS
Ground one and two
Ground one and two assert that the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claim based on discriminatory access to medical treatment in Tonga. The applicant submitted that the Tribunal reasoned based on country information that medical services and medication to treat the applicant’s condition are generally available in Tonga. The applicant relied on WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593 at [47] as authority for the notion that Tribunals can fail to consider a matter even where it is referred to within their decision.
The applicant submitted that despite the Tribunal having “considered his claims of nepotism”, it failed to give proper, genuine and realistic consideration to his claim that he would be refused access to medical services and medication on a discriminatory basis. Namely by reason of his membership of a particular social group, being “persons who are not nurses’ and doctors’ family members” or that he would be arbitrarily deprived of his life. Reliance was placed on Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 73 ALD 321 (“Dranichnikov”).
It was submitted that the Tribunal did not consider the applicant’s circumstances such as, firstly, whether the medications currently prescribed to the applicant would be available in Tonga. Secondly, the applicant alleges that the Tribunal did not make findings in relation to Convention nexus or his membership of a particular social group. The Tribunal’s failure to consider the claimed membership of a particular social group is consistent with the finding that “the risk of harm due to any limitations to the health care services in Tonga…are ones faced by the population of Tonga generally”. Finally, the Tribunal did not make a finding on whether there would be discriminatory access to medical services or education, despite concluding that it was not satisfied the applicant would be denied that access. The applicant submitted that this finding by the Tribunal does not conclude whether or not the applicant “would be denied access to sufficient care or subject to longer wait times on a discriminatory basis”.
Ground three
Ground three relates to the s 375A Certificate (“the Certificate”) regarding “Certain information only to be disclosed to Tribunal”. The applicant submitted that he was not privy to the existence of the Certificate during the course of his merits review application and as a result was denied procedural fairness.
The applicant provides a reproduction of the Certificate which provided that the disclosure of the documentation which was the subject of the Certificate “would be contrary to the public interest” because:
•disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods
•where information was provided 'in confidence,, the provider of the information has not consented to the disclosure of the information to the review applicant.
•As s375A applies to the document(s)/information identified above, the AAT must do all that is necessary to ensure the document or information is not disclosed to any person other than to a member of the AAT, pursuant to s375A(2)(b) of the Migration Act 1958.
The applicant alleges that the Certificate was invalid as the document does not contain information that is within the scope of a claim for non-public disclosure.
As a result, the applicant submitted that, the provision of an invalid certificate was an “unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review” (Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [44], referring to Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22). The applicant contends that the Tribunal can be taken to have taken account of the Certificate and proceeded to treat it as “valid and proceeded with the review on the incorrect basis that it was obliged to limit the applicant’s participation.”
If the applicant had been given an opportunity, he alleges that there was a “realistic possibility” that he would have made submissions as to the document which is the subject of the Certificate that “might” have shifted the Tribunal’s decision. However, without this opportunity, the Tribunal had made an evaluation of the credibility of the applicant’s evidence, which it could not be said to be the same whether he had made any submissions as to the document.
THE FIRST RESPONDENT’S SUBMISSIONS
Ground one and two
In respect of grounds one and two, the first respondent relied on Plaintiff M1/2021 [2022] HCA 17; 96 ALJR 497 to address the applicant’s contention that there was a failure to have proper, genuine and realistic considerations of his protection claim. The Court in that matter held, at [26], that those labels invite impermissible merits review that led the Court to substitute their decision for the administrative decision-maker. Later at [27], the High Court explained:
…if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
The first respondent points to [42] of the Tribunal decision where it was put to the applicant that the elements to which he fears persecution, being discriminatory access to medical services and medication are faced by the general population in Tonga and not only him. The applicant confirmed he had no further evidence in regards to his claim.
Based on a cumulative reading and understanding of the evidence, the Tribunal found that the applicant did not satisfy the complementary protection criterion under s 36(2)(aa) of the Act. In BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543, the Court found that the Tribunal did not have to identify the particular social group of which the applicant claimed to be a member, if they had not accepted the applicant held a well-founded fear of persecution. This sentiment is echoed by Greenwood J in SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 (“SZNOE”) at [78] who endorsed the principles in Dranichnikov. The Court found that where the Tribunal finds that the applicant does not hold a well-founded fear of persecution, no jurisdictional error will arise out of a failure to identify and consider the precise social group to which the applicant claims membership of (see: SZNOE at [78]).
In respect of the applicant’s suggestion that the Tribunal should have considered the availability of each of the applicant’s medication in Tonga, the first respondent submitted that this ground invites the Court to engage in impermissible merits review. The Tribunal asked the applicant if he could remember the names of his medication. The applicant responded that he took Metformin, but could not remember the names of the other medications. At [50] and [51] of the Tribunal’s decision, they referred to the medication the applicant used to treat atrial flutter and diabetes. The Tribunal considered the Tongan Government's Standard Treatment Guideline and Essential Drug List and found that a range of diabetes medications, as well as medications for cholesterol, high blood pressure and cardiac arrythmias or atrial flutter are on the current Standard Treatment Guidelines and Essential Drug List for Tonga. The Tribunal concluded that “[t]he country information also indicates that the applicant would be able to access medical services for each of the conditions, as well as medications, free of charge in Tonga.”
Ground three
The applicant’s submissions refer to a Certificate issued under s 375A of the Act dated 14 November 2023 [CB 103] which refers to the decision of the Tribunal (differently constituted) dated 22 November 2023. This affirms the delegate’s decision not to grant the applicant a Bridging E (Class WE) visa. They held that the Certificate is invalid [CB 111-118]. This Certificate is discussed in the Tribunal’s bridging visa decision where it did not find the Certificate to be valid as the information contained in the document did not fall within the scope of s 375A. Further, any adverse information relating to the applicant had been set out in the Department’s decision record which had already been provided to the Tribunal.
The first respondent submitted that any failure to inform the applicant of the existence of an invalid s 375A Certificate was not material to the decision and did not constitute jurisdictional error. This is affirmed by Ganegoda v Minister for Immigration & Anor [2020] FCCA 135 (“Ganegoda”), where the Court held that if s 375A certificates were found to be invalid, judicial review would turn on whether non-disclosure of the certificate was material to the decision. From the factual circumstances in Ganegoda, the Court found that the Tribunal’s decision could not have been tainted by jurisdictional error by reason of procedural fairness not being accorded, despite two invalid s 375A certificates were not disclosed.
The Tribunal in this case does not refer to the invalid Certificate or the document that is the subject of the invalid Certificate. The Court should reasonably infer on this basis that the Tribunal would have paid no regard to the document or information provided within it to form its decision.
The document subject to the Certificate contained an interview with an Australian Border Force officer on 11 October 2023 and made mention of the applicant’s criminal charges and convictions [CB 111-118]. Despite this, the Tribunal’s decision based on the applicant’s protection visa application indicates that the adverse information had not been part of their reason for affirming the delegate’s decision to not grant the protection visa or regarded as material to their findings.
The first respondent also submitted that the Tribunal did not make an assessment or finding in respect of the applicant’s credibility. At [32] of the applicant’s submissions, the applicant suggests that by preferring the country information to the evidence of the applicant, the Tribunal is taken to have made an evaluation of the credibility of the applicant’s evidence.
CONSIDERATION OF THE GROUNDS OF REVIEW
Ground one
Ground one is a claim that the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claim in respect to discriminatory refusal of medical services and medication in Tonga. The proper approach to such a claim was summarised by Reeves, O'Callaghan and Thawley JJ in Singh v Minister for Home Affairs (“Singh”) [2019] FCAFC 3 at [37]:
In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:
1.First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.
2.Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
(a) the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
(b) it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
(c) a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].
It is also well settled that the country information and the weight it gives to that information is a matter for the Tribunal Authority; ( see: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10).
At [64], the Tribunal set out in some detail the applicant’s claim of nepotism within the Tongan medical system. This included a reference to the evidence of the applicant’s sister that there was a wait of six to nine months to get an appointment at hospitals and clinics, unless someone cancels their appointment. At [65], the Tribunal accepted that medical services available in Tonga may not be as extensive or sophisticated as those in Australia and wait times may be longer. However, it concluded that “there is no compelling information to indicate that the applicant would be denied access to basic medical services or medication for any of the conditions which he suffers”. The Tribunal went on to state that it preferred the country information that indicated that Tonga is characterised by generally high levels of access to health care and that health services are provided free of charge.
Given this level of engagement with the claim, noting that a finding that a Tribunal failed to have an active intellectual engagement, or to give it another name, proper, genuine and realistic consideration, will not be lightly made, the Court is not satisfied that the ground of judicial review is made out. The Tribunal set out the claim and the available evidence. It preferred the country information to the evidence presented by the applicant. Ground one has no merit.
Ground two
Ground two is an alternative to Ground one. It is a claim that the Tribunal asked itself the wrong question and thereby constructively failed to exercise its jurisdiction. This claim centres on the proposition that the Tribunal failed to consider if the applicant was part of a particular group, being “persons who are not family members of doctors and nurses” As a result he would be denied access to medical services and arbitrarily deprived of his life. Reliance was placed on Dranuchnikov, the case centred upon a claim that the applicant was part of a particular business group constituted by ‘businessmen in Russia’. The visa applicant argued that he was a member of a more narrowly defined group, being “businessmen who publicly criticise law enforcement authorities for failure to take action against crime”. In that case, it was found that the Tribunal failed to consider the visa applicant’s membership of the narrower group, thus giving rise to jurisdictional error.
The issue with the applicant’s submission is that the Tribunal found the applicant would have access to medical services in Tonga as set out above. This included access to medications he is currently prescribed. In so doing, it implicitly rejected the claim of nepotism and made a more general finding that the applicant would have access to medical services. The finding that there was “no compelling evidence the applicant would be denied access to basic medical services or medication” encompassed the claim of nepotism. Ground two has no merit.
Ground three
Ground three is a claim of jurisdictional error in the provision of an invalid certificate under s 375A of the Act or a failure to advert to the existence of the certificate for the purposes of the review.
The Certificate was tendered to the Court and has been perused. Annexed to the Certificate is a copy of a “Field Operation Located Person Interview” form relating to an interview with the applicant on 11 October 2023 at Villawood Detention Centre. At page seven of the form is a reference to the criminal conviction of the applicant in 1989 for sexual assault and charges laid against the applicant on 12 February 2020 following a traffic incident that resulted in the death of a pedestrian. There is reference to a charge of “improperly interfere with corpse or human remains”. That charge was ultimately not proceeded with.
A copy of the Tribunal hearing transcript of 12 January 2024 was tendered to the Court. At page 12 of the transcript, the Tribunal discussed with the applicant his conviction for sexual assault and his three year sentence of imprisonment, which subsequently resulted in his removal from Australian in 1991. The applicant also agreed at page 14 of the transcript, with the proposition put to him by the Tribunal that he had been convicted of manslaughter as a result of an incident when he was a garbage truck driver. He set out three convictions for manslaughter, dangerous driving and leaving the scene of an accident.
Given the matters referred to above, the Court is satisfied that the material contained within the Certificate was disclosed to the applicant during the course of the Tribunal hearing. The applicant was provided with a full opportunity to comment on that information. While there was a charge referred to in the Certificate relating to the interference with a corpse, the Court is satisfied it was a charge only and not a conviction. The Court is also satisfied the charge was not taken into account by the Tribunal, only the matters that the applicant admitted to during the course of the hearing.
Given that the Tribunal asked the applicant questions about his criminal history, which indicated that the Tribunal was aware of the applicant’s criminal convictions, the Court is satisfied that the Tribunal treated the s 375A Certificate as invalid. The Court also accepts that a previous Tribunal, which dealt with a bridging visa application, also treated the Certificate as invalid.
The Court does not accept the submission that the Court should work on the presumption that the Tribunal treated the Certificate as valid. Given the Tribunal put information to the applicant as to his criminal convictions, it disclosed the information within the document attached to the Certificate to the applicant. For example, on page 14 at line 10 of the transcript of the Tribunal hearing, a question was phrased as follows, “I understand also that you were remanded in custody on 12th of February 2020…for various criminal offences”.
As a result, the Court is not satisfied that the applicant was denied the opportunity to make submissions in respect to the document subject of the Certificate which could have resulted in a different decision by the Tribunal. The Court does not accept that the Tribunal made any credit finding in relation to the applicant. The Tribunal simply referred, as it was entitled to, the relevant country information having regard to the provision of medical services in Tonga, as compared to his claims of nepotism and his fear of being denied access to basic services to enable him to subsist as a result.
The applicant, when presented with the information related to his criminal convictions, had the opportunity to give such information as he felt appropriate, including his conviction for sexual assault. No procedural unfairness arises. The Court is also not satisfied that any issue of apprehended bias arises. The Tribunal determined this matter on the basis of its assessment of the availability of medical services in Tonga. The applicant’s criminal convictions were not a matter referred to in the decision record. The Court is not satisfied they impacted or were taken into account in the Tribunal’s assessment of a claim for the visa. Ground three has no merit.
DETERMINATION
The application must be dismissed.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:HM
Dated: 30 August 2024
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