CTJ19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 7
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CTJ19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 7
File number(s): SYG 1789 of 2019 Judgment of: JUDGE KAUR-BAINS Date of judgment: 20 February 2025 Catchwords: MIGRATION – judicial review – protection visa – whether real and meaningful hearing – whether failure to consider a claim or an integer of a claim – whether material findings were legally unreasonable, illogical or irrational – jurisdictional error established in failing to consider a claim or integer of a claim because the Tribunal failed to consider evidence that was important to the Tribunal’s decision-making process in considering the claim or an integer of the claim – writ of certiorari issued – writ of mandamus issued to Tribunal requiring it to determine the application for review according to law Legislation: Migration Act 1958 (Cth) ss 36, 424A and 425 Cases cited: AIB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1384
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
BXK15 v Minister for Immigration and Border Protection (2018) 261 FCR 515
Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 77 ALJR 1088
Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Minister for Immigration and Citizenship v Li [2013] 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZBEL v Minister for Immigration and Citizenship (2006) 228 CLR 152
VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80
Division: Division 2 General Federal Law Number of paragraphs: 92 Date of hearing: 4 December 2024 Place: Sydney Counsel for the Applicants: Ms T Baw Solicitor for the Applicants: Kah Lawyers Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Sparke Helmore Lawyers Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1789 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CTJ19
First Applicant
CTK19
Second Applicant
CTL19
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
20 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.A writ of certiorari is issued directed to the Second Respondent, quashing its decision dated 12 June 2019.
3.A writ of mandamus is issued directed to the Administrative Review Tribunal (the successor body to the Second Respondent) requiring it to determine the applicants’ application for review according to law.
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 Kaur-Bains
The applicants seek judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal) dated 12 June 2019, refusing to grant Protection (Class XA) (subclass 866) visas (visas). The first applicant has been diagnosed as suffering from schizoaffective disorder. The first applicant is the primary applicant for the visa, with the second and third applicants being included as members of the first applicant’s family unit.
The primary issues involved in this application for judicial review, broadly are as follows:
(a)Whether the applicants were provided with a real and meaningful hearing by the Tribunal as required pursuant to s 425 of the Migration Act 1958 (Cth) (Act).
(b)Whether the Tribunal failed to consider a claim, or an integer of a claim.
(c)Whether the Tribunal made material findings that were legally unreasonable, illogical or irrational.
For the reasons at [42] to [59] of this judgment, jurisdictional error has been established in relation to alternative ground 1. I find the Tribunal failed to consider an integer of a claim raised by the first applicant, being that the prohibitive cost of buying prescription medication in Mauritius to treat his condition meant he could not afford medication and therefore he is at real risk of harm if returned to Mauritius. I so found because the Tribunal failed to consider evidence that was important to the integer of the claim, being the evidence identified at [53] of this judgment as to the annual cost of medication and the average monthly salary in Mauritius and that part of the evidence in [54] of this judgment which referred to the amount the first applicant would obtain on a disability pension.
PROTECTION VISA CLAIMS
The first applicant’s protection visa claims, set out in his visa application, can be summarised as follows:
(a)He left Mauritius because he was very depressed without his parents, who were living in Australia. His mental health in this regard had become debilitating and he wanted to come to Australia for better medical help (CB 21).
(b)In 2008, he attempted suicide whilst in Mauritius, as his mental condition worsened due to lack of proper medical care. Since arriving in Australia his condition escalated, and he became violent with his parents. With continuous medical and social support within Australia, this situation has been helped (CB 22).
(c)His uncle lost his life due to mental health issues arising out of being locked up in a “mental hospital” in Mauritius and the first applicant fears he will similarly be locked up should he return to Mauritius (CB 22).
(d)If he were to return to Mauritius, he might have another serious episode which may damage his brain, due to lack of community support, poor medical treatment and the fact people with mental illness are not welcome in Mauritian society (CB 23 to 24).
(e)Mental illness is not welcomed in Mauritian society, and he would not get the same treatment as he would in Australia.
TRIBUNAL’S DECISION
On 11 May 2016, a delegate of the first respondent (delegate) refused to grant the applicants the visas (CB 193-218). On 18 July 2016, the applicants applied for review of the delegate’s decision to the Tribunal (CB 223 - 225). On 19 March 2019, the applicants through their migration agent provided written submissions to the Tribunal (CB 252-255).
On 20 March 2019, the applicants appeared before the Tribunal assisted by a French interpreter and their migration agent (CB 276).
The Tribunal accepted the first applicant had been diagnosed with schizoaffective disorder, and he was currently taking clozapine for his condition, which required monthly review ([23] of the reasons). The Tribunal also accepted, without proper treatment or support, the first applicant’s treating doctor was of the opinion there was a significant risk of relapse of his mental illness ([24] of the reasons).
While accepting the first applicant was a member of a particular social group of mentally ill people in Mauritius, the Tribunal was not satisfied the first applicant would be denied medical treatment for the essential and significant reason of his membership of this group, nor was it accepted the Mauritian Government chose not to fund mental health services, or any shortage of funding for these services amounted to systematic and discriminatory conduct ([25] of the reasons).
The Tribunal had regard to country information regarding mental health care in Mauritius. The Tribunal did not accept medical care in Mauritius was woefully inadequate, or there was no government policy on mental health ([26] to [27] of the reasons). The Tribunal concluded it was clear mental health treatment was available for schizophrenia ([29] of the reasons).
The Tribunal noted it had discussed the substance of the country information with the first applicant at the hearing and the first applicant did not dispute there were mental health facilities available in Mauritius nor that he could access them without charge. The first applicant also acknowledged he would potentially be eligible for a disability pension but expressed concerns as to the adequacy of the payment ([30] of the reasons). The Tribunal did not accept the first applicant’s submission the government of Mauritius was intentionally inflicting harm on those with mental health conditions by not sufficiently funding services. The Tribunal was not satisfied this was supported by country information ([31] of the reasons).
The Tribunal noted a significant concern of the first applicant was, in the event of deterioration of his condition he would face admission to Brown Sequard Hospital, which from his previous experience he considered inadequate. The Tribunal accepted there had been reports of inadequate care at that institution and the first applicant’s previous experiences in Mauritius impacted on his fear of returning ([32] to [33] of the reasons). While accepting the first applicant was admitted to Brown Sequard hospital in 2008, the Tribunal was not satisfied given the state of his health at the time and accepted sedation, he was the most reliable narrator of this experience ([33] of the reasons).
The Tribunal was not satisfied the only treatment available for the first applicant in Mauritius was confinement for an indefinite period ([34] of the reasons).
The Tribunal accepted the first applicant had experienced acute episodes of mental illness in Australia, and also accepted the opinion of Dr Afrin that the first applicant required compliance with his treatment and family support to remain stable in the community ([35] of the reasons). While the Tribunal accepted the first applicant may be unable to continue his current medication, it was not satisfied he would be unable to access any medication for his condition ([36] of the reasons).
The Tribunal was not satisfied the first applicant would be without family support, noting the first applicant’s parents presented as being extremely supportive and his grandmother, who had previously shown a willingness to assist the first applicant, continued to reside in Mauritius ([37] of the reasons). Being satisfied the first applicant was able to access treatment for his condition in Mauritius, the Tribunal was not satisfied he would suffer harm and possibly death if he returned ([37] of the reasons). Regarding any future admission to hospital, including to Brown Sequard Hospital, the Tribunal did not accept harm would be intentionally inflicted on the first applicant for a Convention reason, noting he would also have the assistance and advocacy of his family ([38] of the reasons).
Accordingly, the Tribunal found there was not a real chance the first applicant would be seriously harmed for the essential and significant reason of his mental health condition as a result of his return to Mauritius. The Tribunal concluded the first applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act ([40] to [41] of the reasons).
Regarding complementary protection, the Tribunal found care was available to the first applicant through the public system and privately in Mauritius. The first applicant would not be without support as he could return to the family home, be supported by his family and access social security ([42] of the reasons). The Tribunal was not satisfied on the evidence there was an intention to inflict pain or suffering, or to cause extreme humiliation to people suffering mental health conditions ([43] of the reasons).
The Tribunal concluded Australia did not owe the first applicant protection obligations and therefore did not owe the other applicants protection obligations. On 12 June 2019, the Tribunal affirmed the decision under review (CB 357-373).
GROUNDS FOR JUDICIAL REVIEW
In the further amended application filed 6 November 2024, the applicants allege jurisdictional error by the Tribunal on the following grounds:
1.Ground 1 - The Second Respondent (Tribunal) failed to provide to the applicants an invitation to a real and meaningful hearing pursuant to s 425 of the Migration Act 1958 (Cth). Further or in the alternative, the Tribunal failed to consider a claim, or an integer of a claim, raised by the applicants.
2.Ground 2 - The Tribunal failed to consider the claim, or an integer of the claim, raised by the applicants.
3.Ground 3 - The Tribunal made material findings that were legally unreasonable, illogical or irrational.
(as per original) (particulars omitted)
GROUND 1
Ground 1 as pleaded raises two alleged jurisdictional errors, being first whether there was a real and meaningful hearing before the Tribunal pursuant to s 425 of the Act and second whether the Tribunal failed to consider a claim or an integer of a claim, raised by the applicants. I will deal with these two alleged jurisdictional errors separately.
Failure to provide applicants with real and meaningful hearing
Ground 1, first sentence, raises an issue as to whether the applicants were invited to a real and meaningful hearing before the Tribunal pursuant to s 425 of the Act. In support of this ground the applicants provide the following two particulars:
(a) The Tribunal found that "there are resources for the applicant to access treatment and medication free of cost or at subsidised rates" (CB368[34]), based on its own research on country information, that was unknown to the applicants. That finding, in respect to the free or subsidised medication, was required to be raised with the applicants at the Tribunal hearing.
(b) The failure of the Tribunal to do so resulted in the applicants not being offered a meaningful hearing in which they were apprised of issues which might be adverse to them and not provided with a real chance to present their case.
(as per original)
Applicants’ submissions
In the applicants’ written submissions dated 6 November 2024 (at [12]), the applicants say the Tribunal failed to provide a real and meaningful hearing as required by s 425 of the Act, by allegedly failing to bring to the attention of the applicants the issue that “Mauritius provided medication free of cost or at subsidised rates, and he (the first applicant) would be able to access such medication (Free Medication Finding).” The applicants contend the Tribunal had researched country information regarding mental health services in Mauritius before the hearing but was selective about which parts of that country information was put to the applicants and ultimately “kept the applicants in the dark about the Free Medication Finding” ([12](a) of the applicants’ written submissions).
The applicants further submit the Tribunal had made findings at [11] and [34] of the reasons, stating the first applicant had been unable to afford certain medication while living in Mauritius. For that reason, the applicants say the Free Medication Finding was not obvious in the circumstances. The applicants contend this failure of the Tribunal to raise that issue with the applicants amounted to jurisdictional error, as the applicants were not offered a meaningful hearing or given a real chance to present their case.
Minister’s submissions
In his written submissions dated 20 November 2024, the Minister says at [24] that “the availability of medical services in Mauritius was obviously an issue in the review” and the applicants had the opportunity to address that issue. The Minister submits that the Tribunal was entitled to make findings based on the country information without putting those potential findings to the applicants at the hearing. The Minister in support of this proposition relies on what was said by the High Court in SZBEL v Minister for Immigration and Citizenship (2006) 228 CLR 152 (SZBEL) at [48], being that natural justice in this case did not require the Tribunal to disclose what the Tribunal was minded to decide and did not require the Tribunal to give the applicants “a running commentary upon what it thinks about the evidence that is given.” The Minister contends, contrary to the submissions made by the applicants, the Tribunal did not keep the applicants “in the dark” about the Free Medication Finding but rather had likely not made any definitive finding during the hearing.
Consideration
Before considering this part of ground 1, I set out the relevant legal principles as to the right to a real and meaningful hearing before the Tribunal.
Relevant Legal Principles as to an applicant’s right to a real and meaningful hearing
As Logan J explained in BXK15 v Minister for Immigration and Border Protection (2018) 261 FCR 515 at [77]:
It was, rightly, common ground that the hearing to which an applicant was invited under s 425 of the Act had to be ‘real and meaningful’ (MIMIA v SCAR (2003) 128 FCR 553 at [37]) and that this may entail an obligation on the part of the Tribunal to bring to the attention of an applicant any issue arising in the review that was not obvious in the circumstances (SZBEL v MIMIA (2006) 228 CLR 152 at [32]-[43]).
The High Court (per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) in SZBEL established the following principles regarding s 425 of the Act:
32 In Alphaone the Full Court rightly said:
“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.”
33The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (s 425(1)). The reference to “the issues arising in relation to the decision under review” is important.
34 Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.
35 The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
(emphasis in original) (citations omitted)
The High Court in SZBEL also said the following at [48]:
Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369,
the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
The issue for determination in relation to this ground is whether procedural fairness required the Tribunal to raise with the applicants that there was an issue as to whether medication for mental health was free of cost or subsidised in Mauritius. This would need to be raised with the applicants if it was a determinative issue arising in the review that was not obvious in the circumstances.
In order to determine whether procedural fairness required the Tribunal to tell the applicants the country information indicated medication could be accessed for free or subsidised, and invite comment, and whether the Minister’s Counsel was correct to say the issue was “obviously an issue in the review”, the delegate’s decision needs to be considered (as said by the High Court in SZBEL at [35]) to see what issues had been identified.
The delegate’s decision records that the cost of relevant medication was an issue. The delegate’s reasons noted the applicants’ representative stated (CB 209):
Without sufficient resources to meet the cost of relevant pharmaceuticals in Mauritius it would not be possible for him to maintain his progress and once his condition worsened he would be institutionalised… pharmaceuticals for paranoid schizophrenia cost more than under Australia’s Pharmaceutical Benefits Scheme (PBS)…
After setting out the concerns of the first applicant in relation to the costs and standards of medical treatment in Mauritius, the delegate stated the following (at CB 210):
In summary I accept that the applicant:
…
•fears the medical treatment he will receive in Mauritius will be greatly inferior and/or more costly to that he receives in Australia.
However, the delegate found the country information indicated Mauritius had a functioning welfare system and the first applicant’s family members had not indicated they would not assist the first applicant financially in order to cover the costs of his required medication or any of them would be incapable of earning a living so as to cover the cost of his required medication (at CB 215).
The applicants gave evidence and presented arguments to the delegate and to the Tribunal regarding the cost of medication in Mauritius to treat the first applicant’s condition. The evidence and arguments made before the Tribunal are set out at [53] and [54] of this judgment. In my view, it logically follows that if the applicants were aware the costs of medication was an issue in review before the Tribunal, they were aware an issue in the review was whether the medication was either too costly for the applicants or was available for free or at subsidised rates.
It was common ground between the parties at the hearing before me that there was no requirement that the Tribunal put the specifics of the country information to the applicants at the hearing under s 424A(3)(a) of the Act: VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80 at [50]. I also accept the Minister’s argument that the Tribunal was not required to disclose to the applicants what findings it was likely to make in relation to the issue of the cost of medication in Mauritius as this was a finding on an issue that had been raised by the applicants themselves and further the Tribunal was not required to give a running commentary as to its evaluation of the evidence on that issue: SZBEL at [48]. Provided the applicants were given an opportunity to give evidence and present arguments in relation to the issue, being the cost of the medication, the requirements of procedural fairness were met. As noted the applicants did give evidence as to the costs of the medication for his condition, as set out at [53] and [54] of this judgment.
Accordingly, no jurisdictional error is disclosed by the first part of ground 1.
ALTERNATIVE FORMULATION IN GROUND 1 – TRIBUNAL’S ALLEGED FAILURE TO CONSIDER CLAIM OR INTEGER
Alternatively to the first part of ground 1, the applicants allege the Tribunal failed to consider a claim or an integer of a claim. In support of this ground the applicants provide the following three particulars at subparagraphs (c) to (e) as follows:
(c) Further, or in the alternative, the applicants raised the claim, or integer of a claim, that the prohibitive cost of buying prescription medication in Mauritius and the exorbitant cost of accessing mental health facilities there, meant the applicants could not afford treatment for the first applicant.
(d) The Tribunal failed to consider and make a finding to address that claim.
(e) The claim could not be said to be subsumed in the Tribunal's finding at CB368[34] as the Tribunal had already accepted that the applicant had to stop taking a prescribed drug in Mauritius as he could not afford it. The Tribunal failed to resolve and reconcile the contradictory claim and finding.
(as per original)
Applicants’ submissions
The applicants contend that the Tribunal failed to consider a claim or integer of a claim expressly raised by the applicants, along with the related evidence and submissions regarding that claim. The relevant claim the Tribunal allegedly failed to consider was articulated in the applicants’ written submissions dated 6 November 2024 at [5] as follows:
… that the prohibitive cost of buying prescription medication in Mauritius and the exorbitant cost of accessing mental health facilities there, meant the [first] applicant and his family could not afford treatment for him. Without access to such treatment the [first] applicant is at a real risk of harm if returned to Mauritius. (Cost of Drugs Claim)
The applicants say the Cost of Drugs Claim was made in written submissions dated 29 April 2016 by the applicants’ registered migration agent following the interview with the delegate at CB 164, where the following was stated:
The latter presents for the applicant and his parent’s major financial hurdles in sourcing the relative drugs within Mauritius… We estimate the cost of buying prescription medicines including pathology over a year to be relatively costly if not prohibitive in Mauritius.
The applicants also say that during the Tribunal hearing the issue of the prohibitive costs of medication of a type required to treat the schizophrenia disorder suffered by the first applicant was raised and discussed and that evidence, which is outlined below at [53] and [54] of this judgment, was relevant to the Cost of Drugs Claim and was not considered by the Tribunal in its written reasons.
Minister’s submissions
The Minister does not dispute the applicants had made the claim that the Minister rephrases as the first applicant “could not afford medication in Mauritius”. However, the Minister says on a fair reading of the Tribunal’s reasons, the Tribunal made a finding that it did not accept the first applicant and his family would be unable to afford medication or treatment in Mauritius.
The Minister says the Cost of Drugs Claim was considered at paragraphs [30], [34] and [37] of the Tribunal’s reasons. At [30] of the reasons the Tribunal noted the first applicant’s acknowledgement that he may potentially be eligible for a disability pension. At [34] of the reasons, the Tribunal stated that the first applicant’s previous decision to cease taking risperidone “potentially due to cost” was made “in circumstances where no financial assistance was sought from the first applicant’s parents to meet these costs, and the first applicant was not receiving an income or social security support.” At [37] of the reasons, the Tribunal noted the first applicant has strong family support and in the event he was to return to Mauritius his parents would have to return with him and continue providing him with support. Read fairly and as a whole, the Minister says the said paragraphs show that the Tribunal did consider the potential costs associated with treatment and medication in Mauritius and resolved how the first applicant would be able to afford such treatment and medication upon the first applicant and his parents’ return to Mauritius.
The Minister also submits that the Cost of Drugs Claim was subsumed in findings of greater generality, being the Tribunal’s finding it did not accept the first applicant would be unable to afford treatment in Mauritius:
Consideration
Before considering the alternative formulation of ground 1, I set out the relevant legal principles that apply when determining this ground.
Relevant legal principles as to a failure to consider a claim or an integer of a claim
The Full Court of the Federal Court of Australia (per Collier, McKerracher and Banks-Smith JJ) in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 set out the broad principles concerning the obligation of administrative decision makers to consider all of the claims and integers of claims in a visa application (at [18]) as follows:
•The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
•The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).
•These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
… A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
(emphasis in original)
•As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37 While the Tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the Tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the Tribunal when it is plain on the face of the material before it.
38 Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (WAEE), the Full Court (French, Sackville and Hely JJ) stated the following at [47]:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
Relevant legal principles as to a failure to consider evidence supporting a finding of failure to consider a claim
An issue before the Full Court of the Federal Court in Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 (Katzmann, Griffiths and Wigney JJ) was whether a letter of a reverend supporting the respondent’s claim of being a Christian had been considered in an application for a protection visa and whether the failure to consider the said evidence amounted to jurisdictional error. At [38], the Full Court noted that the issue of whether the applicant was baptised was an important matter in considering the claim that he was a Christian. This was because the Tribunal had formed the view that baptism is very important in a Christian’s life. The reverend’s letter bore directly on the issue of whether the applicant had been baptised. Given the importance of the letter to the claim being advanced, at [39], the Full Court found that if the letter had been considered by the Tribunal it could readily be expected that it would have been referred to in the Tribunal’s reasons. Therefore, it was open to infer that the letter was not considered by the Tribunal (at [39]). The Full Court found at [47] that whether the failure to consider the said letter amounted to jurisdictional error turned on “the importance of the ignored material to the Tribunal’s process of decision-making”.
The Full Court also said at [54]:
It may be accepted, too, that the distinction between ignoring evidence and ignoring a claim can be useful. So much was accepted by Robertson J when his Honour described it (at [111] ) as a “tool of analysis”. His Honour did not suggest that the previous authorities which had drawn the distinction were wrongly decided. The point his Honour was making was that it is too narrow an approach merely to ask in a case such as this whether the ignored material is a claim or part of a claim on the one hand or evidence on the other. Such an approach may provide the answer in some cases, but not in all. That is because, as his Honour also pointed out (at [98] ), the Tribunal can fail to exercise its jurisdiction or fail to consider a claim in a number of different ways, including by ignoring evidence that is important to a claim, or ignoring evidence that, having regard to the course of its decision-making, acquires importance to the exercise of its jurisdiction. Some cases, including the category of case just referred to, may not comfortably fall on either side of the supposed claims/evidence divide, yet the error in ignoring the material may be serious and go to the exercise of the Tribunal’s functions. We respectfully agree with Robertson J’s analysis.
(emphasis added)
At [56] the Full Court found that the reverend’s letter was capable of reconciling the conflicting oral and documentary evidence about the applicant’s claim to be baptised and therefore was “centrally important” to the Tribunal’s decision-making process. Therefore, at [57], the Full Court held that the failure to consider the said letter in considering the claim resulted in jurisdictional error. At [58] the Full Court emphasised that to merely ignore relevant material does not establish jurisdictional error.
The issue before the Full Court of the Federal Court in Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 (Gordon, Robertson and Griffiths JJ) was whether the Tribunal fell into jurisdictional error by failing to consider an email and an Amnesty International report which supported the respondent’s claim to fear unfair arrest in Iran (at [5], 63]). The Full Court decided the Tribunal did fall into such error in this way, as the email and report was important evidence that was ignored in its decision-making process (at [63], [65]). To avoid such error, the email and report would have had to have been evaluated (at [65]).
What claim or integer of claim was raised
Turning to this matter, there is no issue between the parties that the first applicant raised an integer of a claim, being that the prohibitive cost of buying prescription medication in Mauritius and the exorbitant cost of accessing mental health facilities there meant the first applicant could not afford treatment. Pausing there, the reference to medication properly understood was medication of a type that the first applicant needed to treat his schizophrenia disorder.
The Minister properly accepted such an integer of a claim was made in light of the following matters:
(a)The applicants’ representative in written submissions dated 29 April 2016 (at CB 163- 164) said:
The latter presents for the applicant and his parent’s major financial hurdles in sourcing the relative drugs within Mauritius… We estimate the cost of buying prescription medicines including pathology over a year to be relatively costly if not prohibitive in Mauritius.
(b)The delegate in her reasons for decision dated 11 May 2016, under the heading “Claims for Protection”, noted that the applicants’ representative stated that (at CB 209):
Without sufficient resources to meet the cost of relevant pharmaceuticals in Mauritius it would not be possible for him to maintain his progress and once his condition worsened he would be institutionalised… pharmaceuticals for paranoid schizophrenia cost more than under Australia’s Pharmaceutical Benefits Scheme (PBS)…
Therefore, I must consider the following issues:
(a)First, to identify what evidence the applicants say was not considered by the Tribunal.
(b)Second, to identify how the said evidence was relevant to the Tribunal’s process of decision-making.
(c)Third, to determine the importance of the evidence to the Cost of Drugs Claim.
(d)Last, if the evidence was important to the Tribunal’s process of decision-making, then to review the Tribunal’s written reasons provided pursuant to s 430 of the Act, requiring it to set out its findings on questions of fact it considers to be material together with the evidence and other material on which those findings are based.
I will first look at that part of the claim that relates to the first applicant’s claim that the cost of medication required to treat his condition was prohibitive and then I will turn to the part of the claim that refers to the cost of accessing health facilities.
What evidence do the applicants say was not considered
Before the delegate, the applicants provided evidence of the cost of medication the first applicant would require, being 45,378 Mauritian Rupees, and the average monthly salary in Mauritius, being 56,823 Mauritian Rupees (see CB 158-160). I note this evidence was identified in the delegate’s reasons, where the delegate said (at CB 215, omitting citations):
The applicant's representative has provided evidence of shortfalls in the Mauritian economy and the costliness of medical treatment vis-a-vis the Australian equivalents. The information includes average earnings and the likely annual cost of the applicant's treatment, 45,378 rupees, compared with the average monthly salary in Mauritius of 56,823 rupees.
Further, at the hearing before the Tribunal, the following evidence from the applicants went to the issue of the prohibitive cost of medication in the first applicant’s circumstances:
First applicant’s mother:
…and then my mum take him to a private doctor and the private doctor put him on medication (indistinct), like (indistinct) medication. Then he was well with that medication, he was stable, and then my mum [first applicant’s grandmother] couldn’t afford to pay that medication, she just stop, say (indistinct) buy the medication again because I don’t have money… (Tribunal Hearing Transcript annexed to affidavit of Michael Kah filed on 8 November 2024 (Tribunal Transcript) 16:5-9)
…
First applicant’s mother:
And the income in Mauritius, is very (indistinct), it’s $200 for a month. That (indistinct) mentioned, but that’s the truth.
Member:
Well there are there’s publicly funded health services in Mauritius.
First applicant’s mother:
Yes, but they won’t buy the medication for you. They just give you the medication, they provide. They don t care about whether you need that one. They will give you the one they provide. They can say whatever, but we know exactly. We live there. (Tribunal Transcript 26:12-22)
…
Member:
Yes. In addition, there’s also a social security system and an invalidity pension is available - - -
First applicant’s mother:
Yes, it’s 600 rupees per month. Which means $200 - $180 per month. Yes, it’s - yes about 600 rupees - 6000 rupees per month, which is equal to (indistinct) per month.
First applicant:
And I can’t afford to buy anything or get something.
Member:
Well with what I’m saying is that with the medical care that is subsidised by the government and the access to a pension, treatment can become affordable. (Tribunal Transcript 28:38-46 – 29:1-3)
…
First applicant:
But I won’t get the right medication. I’m taking a medication - - -
Member:
But you won’t get the right medication.
First applicant:
If I’m taking the government medication I will get sick, and they can’t do anything about it. I can’t get this medication to go back to my country. They won’t allow me to do this. (Tribunal Transcript 29:15-22)
How the evidence was relevant to the Tribunal’s process of decision making
The claim being made by the first applicant was that the prohibitive cost of buying medication of a type he required, was such that he could not afford treatment in Mauritius and therefore he was at real risk of harm if returned to Mauritius. I find the evidence identified in [53] of this judgment and the amount the first applicant would obtain on a disability pension outlined at [54] of this judgment, were relevant to the decision-making process as to whether the cost of medication of the type that the first applicant required in his circumstances was prohibitive.
The importance of the evidence to the Cost of Drugs Claim
The Tribunal set out and discussed country information in relation to various aspects of the medical system and mental health care in Mauritius from [26] to [32] of the reasons. The country information as set out in those paragraphs primarily relates to the cost of accessing the “mental health facilities” aspect of the Cost of Drugs Claim, rather than the “cost of buying prescription medication” aspect of the claim. In fact, there is no mention of medication in any of the extracts of the country information set out in the Tribunal’s reasons, except that at [29] of the reasons where the Tribunal stated “a 2016 academic article published in medical journal PLOS One also states that the entire health system in Mauritius is free.” The said academic article was footnoted by the Tribunal and is entitled 'Duration of Untreated Psychosis in Chinese and Mauritian: Impact of Clinical Characteristics and Patients' and Families' Perspectives on Psychosis', PLOS One, June 2016, 20190329140705. That article contains the following statement:
In Mauritius, the whole health system is totally free of all charge, which means that despite free consultations, treatment, inpatient stay and medications, a low monthly income contributed to a long DUP. (emphasis added)
A finding was made as to the cost of medication at [34] of the reasons, on the basis of the country information referred to in the preceding paragraph, being a rather vague reference to medication being “free”, without expanding on what type of medication was free, and whether it was relevantly of a type required to treat the first applicant’s mental disorder.
Further, the Tribunal referenced and resolved how the first applicant would have increased financial support from his parents and social security payments if he were to return to Mauritius at [30], [34] and [37] of the reasons, so he could access medication he required. Given that the Tribunal needed to resolve this central question as to how the first applicant was going to afford the cost of medication for his condition, I find the evidence as to the cost of the medication of the type the first applicant required, when compared with the average monthly wage in Mauritius, and the amount the first applicant could obtain on the disability pension, was important to this part of the Tribunal’s decision-making process.
Did the Tribunal consider the evidence that was important
In considering whether the first applicant could afford the medication he required, the Tribunal’s reasons do not set out the evidence at [53] of this judgment or the part of the evidence at [54] of this judgment that identifies the amount the first applicant is likely to receive on a disability pension. I note [8(x)] and [8(xi)] of the Tribunal’s reasons do reference the source documents provided by the applicants’ representatives to the delegate, which set out the information noted at [53] of this judgment. However, when setting out its consideration from [22] of the reasons, the Tribunal does not set out the evidence at [53] of this judgment and consider how it is to be reconciled with the country information at [56] of this judgment, that medication is free, and how the amount of the average monthly salary and the amount of the disability pension interplay with the cost of the type of medication the first applicant requires. Therefore, given the effect of s 430 of the Act, I find the Tribunal failed to consider the said evidence when considering the first part of the Cost of Drugs Claim (being the prohibitive cost of medication in Mauritius) and thus failed to perform the required statutory task of review and fell into jurisdictional error.
Second Part of the Cost of Drugs Claim
In relation to the second part of the Cost of Drugs Claim, being whether the cost of accessing mental health facilities was prohibitive, I find the Tribunal did consider all the evidence that was important to that issue as identified at [26], [29], and [31] of the Tribunal’s reasons. Further, I note at [30] of the reasons, the Tribunal records the first applicant acknowledged he could access mental health facilities free of charge. Accordingly, the Tribunal did perform its required statutory task of review in considering the second part of the Cost of Drugs Claim.
GROUND 2
The second ground also raises an issue whether the Tribunal failed to consider a claim or an integer of a claim raised by the applicants. A significant portion of the hearing before me was spent trying to ascertain exactly what claim the applicants were alleging the Tribunal failed to consider. Initially the Counsel for the applicants said what was being alleged in ground 2 was the applicants “claimed that the type of medication he required was not available in Mauritius, and the Tribunal failed to consider that integer or claim” (Tp 9.21-25). When pressed to articulate the specific claim or integer of a claim the Tribunal allegedly failed to consider, Counsel for the applicants said (at Tp 34-35):
The claim is that clozapine is the medication that is most appropriate to treat the first applicant. And the first applicant also claimed that the government would merely provide any medication and not necessarily the appropriate medication. The Tribunal did not address the second part of the claim.
Counsel for the applicants confirmed that the claim in the preceding paragraph was not that the Mauritian government and health system would randomly provide unrelated medication without reference to the condition of a patient, but rather the medication provided would not necessarily be the appropriate medication (Tp 40.30-35).
Applicants’ submissions
The applicants say evidence of the claim as articulated in [61] of this judgment being made to the Tribunal can be found in three places:
(a)First, the written submissions dated 19 March 2019 of the applicants’ registered migration agent found at CB 254.
(b)Second, the corroborating evidence of the first applicant’s doctor, Dr Afrin, in the letter dated 1 April 2019 found at CB 282.
(c)Third, the oral evidence of the first applicant and the third applicant (being the first applicant’s mother) found in the transcript of the Tribunal hearing.
The applicants say (as recorded at Tp 13.23-34) that the first piece of evidence of the claim being put before the Tribunal, being the written submissions of the applicants’ registered migration agent at CB 254, can be found in the following statement relating to the first applicant’s use of clozapine and his non-responsiveness to other medications:
It is noted that this drug (clozapine) is for treatment resistant schizophrenia which reflects the applicant’s history of non-response to other treatments. It is therefore submitted that it may not be possible to treat the applicant’s current condition in Mauritius and that his fear of suffering serious harm and possible death as a result are well founded.
The applicants then say the second piece of evidence of the claim being put before the Tribunal, being the letter from the first applicant’s doctor, Dr Afrin, dated 1 April 2019 at CB 282, can be found in the following statement regarding the availability of clozapine in Mauritius:
Cumberland Pharmacy was able to contact pharmacist in Hospital where [the applicant] was admitted in the past, and they were not aware about treatment with clozapine in Mauritius.
The applicants contend the third piece of evidence of the claim being put before the Tribunal, being from the oral evidence of the first and third applicants at the Tribunal hearing, can be found in the transcript of the Tribunal hearing after the Tribunal member said (at Tribunal Transcript 25.35):
But what I do need to put to you is the country information indicates that Mauritius has a mental health plan; that there’s legislation around the treatment for patients for mental health, and ensuring that they are treated and treated with respect; that sorry that it includes government funding for services such as hospitals to community treatment.
In response, the first and third applicants gave the following evidence to the Tribunal:
(a)The third applicant stated (at Tribunal Transcript 25.40): “Can I say something Member? They saying that (indistinct words), but they won’t give the clozapine their hospital. They won’t. They won’t give that one. They only give the medication provided for (indistinct) patient.”
(b)The third applicant stated (at Tribunal Transcript 26.20): “they won’t buy the medication for you. They just give you the medication, they provide. They don’t care about whether you need that one. They will give you the one they provide. They can say whatever, but we know exactly. We live there.”
(c)The third applicant stated (at Tribunal Transcript 27.30): “getting the clozapine, they getting the proper medication. No, they won’t give the proper medication, just for specific patient. They’ll give you whatever they have.”
(d)The first applicant stated (at Tribunal Transcript 29.15): “but I won’t get the right medication.”
(e)The third applicant stated (at Tribunal Transcript 30.10): “if he don’t have that medication, if he don’t get that proper treatment, they will not care for him to get the clozapine just for him. He’ll get anything that the government provides.”
In essence, the applicants’ submissions are when taken as a whole the evidence set out at [64] to [67] of this judgment constitutes the claim before the Tribunal as articulated in [61] of this judgment. The applicants say while the Tribunal’s reasons at [36] do address the first applicant’s claim he may be unable to continue taking clozapine in Mauritius, the fact the Tribunal went on to state it was “not satisfied that the situation is such that the first applicant would be unable to access any medication for his condition” demonstrated the Tribunal had failed to consider the first applicant’s claim the government would merely provide any medication and not necessarily appropriate medication. This is because the phrase “any medication” does not address the first applicant’s medical history or the integer of the claim that there may not necessarily be appropriate medication available for the first applicant’s circumstances.
Minister’s submissions
The Minister contends that the term “appropriate medication” in the claim (set out at [61] of this judgment) as formulated by the applicants’ Counsel was too vague. The Minister says the only medication identified by the first applicant as successfully treating his condition was clozapine and the Tribunal specifically addressed the fact the first applicant may be unable to access clozapine in Mauritius, but found that did not equate to serious harm (at [36] of the reasons). The Minister submits it was not claimed before the Tribunal that Mauritian health services would provide patients with any inappropriate medication and the Tribunal found there was medication available in Mauritius to treat the first applicant’s condition, albeit not his preferred medication, being clozapine.
The Minister also contends the claim was not a substantial, clearly articulated argument relying upon established facts: Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 77 ALJR 1088 at [24]. The Minister says the claim as articulated by the applicants’ Counsel in Court cannot be found in a clearly articulated way in the transcript of the Tribunal hearing or elsewhere.
Consideration
At [36] the Tribunal considered the claim whether the first applicant would be able to access medication in Mauritius that was suitable for the first applicant’s condition, which the Tribunal was aware of as recorded at [3], [11], [23], and [24] of its reasons.
I reject the first applicant’s submission that the Tribunal, at [36] of the reasons, made a finding “any medication” is available in Mauritius and did not consider whether medication which is appropriate to treat the first applicant’s type of schizophrenia is available, for the following reasons:
(a)The Tribunal as noted at [3], [11], [23], and [24] was aware of the first applicant’s medical history and the contents of Dr Afrin’s report;
(b)The Tribunal expressed the finding as to medication for the first applicant’s particular condition (at [36] of the reasons) as follows:
The Tribunal has considered that the applicant is currently receiving clozapine, and there may be difficulties with accessing the medication and adhering to the treatment protocol given the reported side effects… Dr Afrin reports that there is a significant risk of relapse for the applicant if he returns without a proper treatment plan or family support. It is accepted that the applicant may not be able to continue his current medication. However, the Tribunal is not satisfied that the situation is such that the applicant would be unable to access any medication for his condition. While Dr Affrin reports problems with the applicant’s previous anti-psychotic medication it is not the evidence that there is no other treatment available. Although the applicant may have to use other types of medication, the Tribunal finds that this does not amount to serious harm.
(emphasis added)
The Tribunal accepted at [36] the first applicant may not be able to continue with his current medication and may have to use other types of medication, but was not satisfied he would be unable to access any medication for “his condition”. In my view, the Tribunal demonstrated it considered and made a finding regarding the essential components or integers of the claim that was put before it, that is, the Tribunal was not satisfied the first applicant would be unable to access any medication for his particular condition which carries with it an implied finding that the Tribunal was not satisfied that the first applicant would be unable to access appropriate medication for his condition.
Therefore, no jurisdictional error is disclosed by ground 2.
GROUND 3
The third ground raises an issue whether the Tribunal made material findings that were legally unreasonable, illogical or irrational. The alleged legally unreasonable, illogical or irrational findings in question were said to be the following at [36] of the reasons:
However, the Tribunal is not satisfied that the situation is such that the applicant would be unable to access any medication for his condition. While Dr Affrin reports problems with the applicant’s previous anti-psychotic medication it is not the evidence that there is no other treatment available. Although the applicant may have to use other types of medication, the Tribunal finds that this does not amount to serious harm.
Applicants’ submissions
The applicants argue the findings at [36] of the Tribunal’s reasons were legally unreasonable, illogical or irrational, because the evidence before the Tribunal was such that the first applicant had treatment-resistant schizophrenia and he had already trialled three drugs on numerous occasions over many years that had been ineffective. With that medical history in evidence, the applicants say it was legally unreasonable, illogical or irrational for the Tribunal to make the finding it was not satisfied the situation was such that the first applicant would be unable to access any medication for his condition and using other types of medication would not amount to serious harm.
The applicants submit although the first applicant’s medical history was set out at [11] of the reasons, that medical history was incomplete and did not recognise the extent of the ineffectiveness of the other three drugs that the first applicant trialled multiple times over several years. In the applicants’ written submissions dated 6 November 2024, the applicants claim the following relevant facts were not included in the medical history set out by the Tribunal at [11] of the reasons:
a. the first applicant’s ‘admission in Brisbane in 2010 after he punched a wall and overdosed on Risperidone’ and the inference is that he was subsequently taken off Risperidone (CB282);
b. in 2017, following his transition to Latuda [lurasidone] he subsequently relapsed and ended up at Concord Hospital in October 2017 where he was given Olanzapine ‘however this time it had no effect’ (CB253);
c. the admission to Concord Hospital 2017 was confirmed by Dr Afrin, stating that: “[t]his admission was precipitated by switching his antipsychotic medication [sic] few months earlier than that.” (CB282); and
d. that it was during his admission in 2017 that the first applicant “commenced on clozapine which continues to be his current medication and keeping his mental state stable” (CB282).
Counsel for the applicants made submissions in Court to the effect that, on a fair reading of the Tribunal’s reasons, the Tribunal did not fully appreciate what the first applicant’s condition actually was, as it did not have regard to the specifics of his medical history. In essence, the applicants contend when the findings at [36] of the reasons are read in the context of the full extent of the first applicant’s condition, the conclusion the first applicant can simply use other types of medication to treat his condition was legally unreasonable, illogical or irrational.
Minister’s submissions
The Minister contends the Tribunal was aware of the full extent of the first applicant’s medical history. The Minister says the only specific reference to the first applicant having “treatment-resistant schizophrenia” was found in the written submissions of the applicants’ registered migration agent dated 19 March 2019, which was addressed by the Tribunal at [11] of the reasons, along with the first applicant’s relevant medical history. The Minister says the Tribunal also had regard to Dr Afrin’s letter at [33] and [36] of the reasons and stated the following at [23] of the reasons:
Having considered all the evidence and submissions the Tribunal accepts that the applicant has been diagnosed with schizoaffective disorder, and that his current medication is daily clozapine. As per protocol for this medication the applicant requires monthly review.
The Minister submits the Tribunal had regard to all of the necessary evidence and the first applicant’s medical history. The Tribunal was thus aware of the full extent of the first applicant’s condition when making its findings. The Minister contends it was open to the Tribunal to find there was medication available to treat the first applicant's condition in Mauritius, even if the first applicant may not be able to access his preferred medication.
The Minister argues on the first applicant’s own evidence there was treatment other than clozapine which had been effective in the past, as the Tribunal noted at [34] of the reasons, the first applicant’s condition had “stabilised” on risperidone and the decision to cease that medication was due to cost. The Minister contends reasonable minds could differ as to the Tribunal’s conclusion at [36] of the reasons and so for that reason the decision-making process was not legally unreasonable: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS).
Consideration
Before considering ground 3, I set out below the relevant legal principles that apply when considering whether jurisdictional error is established based on illogicality, irrationality or legal unreasonableness.
Relevant legal principles as to legal unreasonableness
The Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Allsop CJ, Robertson, Mortimer JJ (as her Honour then was)), in considering legal unreasonableness referred to the High Court decisions in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 and SZMDS at [44] and noted legal unreasonableness may arise in two different contexts:
(a)The first is the identification of an underlying jurisdictional error in the decision-making process.
(b)The second is the outcome (ultimate conclusion) of the exercise of power was arbitrary, capricious or outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law.
Jurisdictional error in decision-making process
In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (SZUXN), at [49], Wigney J elaborated on the first context in which legal unreasonableness may arise, being where “a Tribunal that employs irrational or illogical reasoning, or makes irrational findings of fact not based on probative material, is likely to be in breach of the implied requirement that it act reasonably in exercising its statutory review powers and jurisdiction.” So, for example, in exercising a statutory power, the Tribunal may need to weigh up a number of different matters or reach a decision as to credibility. In making those determinations, the Tribunal’s reasons and findings can be examined as to whether they have been made reasonably. In so doing, it is noted where reasonable minds might differ as to the reasoning or the findings of fact then it cannot be said there has been irrational or illogical reasoning or irrational finding of fact: SZMDS at [130] and [131] per Crennan and Bell JJ.
Further, if an error is identified in the decision-making process (that is, on the way to the ultimate conclusion), then as Wigney J said in SZUXN, at [55]:
… the overarching question is whether the Tribunal’s decision was affected by jurisdictional error: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out.
In SZMDS (Crennan and Bell JJ) stated the following:
132. Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal's conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. It is clear, from the extracts from the Federal Court decision set out above, that the Federal Court emphatically disagreed with the Tribunal's finding that the first respondent's return to Pakistan and failure to seek asylum in the United Kingdom was conduct which was inconsistent with the claimed fear of persecution arising as a result of homosexuality. It also seems clear that the Federal Court, acting on the same material or evidence on which the decision was based, would have been satisfied that the first respondent feared persecution as alleged.
133.However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it…
…
135.On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…
The applicants’ submissions in relation to ground 3 allege legal unreasonableness, illogicality and irrationality in both the decision-making process and the outcome of the decision. I will address both aspects of the ground individually.
With regard to the decision-making process, the applicants argue the Tribunal did not consider the full extent of the first applicant’s medical history and thus did not properly understand the true nature of the first applicant’s condition. I do not accept the Tribunal did not consider the full extent of the first applicant’s medical history and condition. In my view, a fair reading of the Tribunal’s reasons, as a whole, particularly with reference to [11], [23], [33] and [36], shows an understanding of the evidence of the first applicant’s condition. In my view, the Tribunal was correct to note at [36] of the reasons that it was not the evidence that there was no other treatment available other than clozapine. Given these matters, I do not accept the Tribunal’s decision-making process in relation to the findings at [36] of the reasons was infected by legal unreasonableness as the finding of non-satisfaction was open to the Tribunal on the material before it.
With regard to the outcome or the ultimate conclusion reached by the Tribunal, the applicants contend given the medical history of the first applicant in unsuccessfully using drugs other than clozapine and the risk of relapse identified by Dr Afrin at CB 282, it was legally unreasonable for the Tribunal to find using other types of medication “does not amount to serious harm”. This Court does not have jurisdiction to engage in merits review. As such, it is not open to me to determine whether or not the treatment the first applicant will receive in Mauritius will be adequate to treat his condition. The question before me is whether the decision was within the range of possible acceptable outcomes which are defensible in facts and law. In my view, based on the totality of the evidence before the Tribunal, the outcome reached by the Tribunal was within the range of possible acceptable outcomes.
No jurisdictional error is disclosed by ground 3.
CONCLUSION
I am satisfied, given the jurisdictional error disclosed by the second part of ground 1, it is appropriate to quash the decision of the Tribunal dated 12 June 2019 and issue a writ of mandamus directed to the Administrative Review Tribunal (the successor body to the Administrative Appeals Tribunal) requiring it to determine the applicants’ application for review according to law.
COSTS
I will hear the parties on costs.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 20 February 2025
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