FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZH16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1041 |
| Catchwords: MIGRATION – Protection (Class XA) Subclass 866 visa – decision of the Administrative Appeals Tribunal – where substantial portions of the Tribunal’s decision are identical to the delegate’s decision – whether Tribunal undertook a proper review – jurisdictional error established – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.5AAA, 5J, 36, 57, 476, 499 |
| Applicant: | DZH16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 352 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing dates: | 17 February 2020 and 21 April 2020 |
| Date of Last Submission: | 21 April 2020 |
| Delivered at: | Perth |
| Delivered on: | 8 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Ms S J Oliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the second respondent quashing the decision dated 12 August 2019.
A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicant’s application for review according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 352 of 2019
| DZH16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 5 September 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 12 August 2019.
The Tribunal’s decision affirmed a decision made by a delegate of the first respondent (the “Minister”) to not grant the applicant a Protection (Class XA) Subclass 866 visa (the “visa”).
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain relief from this Court, the applicant must show that the Tribunal fell into jurisdictional error.
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Details
- Case
- [2020] FCCA 1041
- Decision Date
CaseChat Overview and Summary
The applicant, DZH16, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning his application for a Protection (Class XA) Subclass 866 visa. The core of the dispute revolved around whether the Tribunal had undertaken a proper review of the applicant's claims, particularly regarding his medical conditions and the availability of treatment in Iraq. The matter came before Judge Kendall in the Federal Circuit and Family Court of Australia.
The primary legal issue before the Court was whether the AAT had committed jurisdictional error by failing to conduct a sufficiently independent and thorough review of the applicant's case. Specifically, the Court was required to determine if substantial portions of the Tribunal's decision were merely identical to the original delegate's decision, thereby indicating a failure to engage with the evidence and arguments presented by the applicant. This also encompassed whether the Tribunal adequately assessed the applicant's claims of suffering serious harm due to his medical conditions and the potential lack of access to appropriate treatment in Iraq.
Judge Kendall found that the Tribunal had indeed committed jurisdictional error. The Court noted that significant portions of the Tribunal's written decision were identical to those of the original delegate, indicating a failure to undertake an independent review. The Tribunal's reasoning regarding the applicant's medical conditions, including mental health issues, epilepsy, opioid dependency, Hepatitis C, and PTSD, was found to be insufficient. While acknowledging the applicant's reported conditions and the availability of some medical services in Iraq, the Tribunal did not adequately explain why these factors did not amount to a real chance of serious harm, particularly in light of the applicant's specific needs and the acknowledged limitations of mental health care in Iraq. The Court concluded that the Tribunal had not properly considered the evidence in a manner that would satisfy the requirements of a review.
Consequently, the Court issued the writs sought by the applicant, quashing the decision of the Administrative Appeals Tribunal.
The primary legal issue before the Court was whether the AAT had committed jurisdictional error by failing to conduct a sufficiently independent and thorough review of the applicant's case. Specifically, the Court was required to determine if substantial portions of the Tribunal's decision were merely identical to the original delegate's decision, thereby indicating a failure to engage with the evidence and arguments presented by the applicant. This also encompassed whether the Tribunal adequately assessed the applicant's claims of suffering serious harm due to his medical conditions and the potential lack of access to appropriate treatment in Iraq.
Judge Kendall found that the Tribunal had indeed committed jurisdictional error. The Court noted that significant portions of the Tribunal's written decision were identical to those of the original delegate, indicating a failure to undertake an independent review. The Tribunal's reasoning regarding the applicant's medical conditions, including mental health issues, epilepsy, opioid dependency, Hepatitis C, and PTSD, was found to be insufficient. While acknowledging the applicant's reported conditions and the availability of some medical services in Iraq, the Tribunal did not adequately explain why these factors did not amount to a real chance of serious harm, particularly in light of the applicant's specific needs and the acknowledged limitations of mental health care in Iraq. The Court concluded that the Tribunal had not properly considered the evidence in a manner that would satisfy the requirements of a review.
Consequently, the Court issued the writs sought by the applicant, quashing the decision of the Administrative Appeals Tribunal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Relevantly, the Tribunal states:69. The applicant claims that as a result of his medical conditions there is a real chance he will suffer serious harm in the event that he is returned to Iraq, particularly by reason of the fact that he will not be able to access appropriate medical treatment in Iraq. He submits that he needs to remain in Australia so that he is assured of receiving medical treatment. By his written claim, the applicant states that he suffers form medical conditions, including mental health issues, disabilities and other health complaints. The applicants evidence to the delegate was that he suffers from hearing loss, epilepsy, opioid dependency, anxiety and depression, Hepatitis C and Post Traumatic Stress Disorder (PTSD) and that he requires treatment for all these conditions. The applicant provided a print out of his clinical record from the health service provider contracted by the Department, International Health and Medical Services (IHMS). The record shows that the applicant is on methadone treatment for methamphetamine dependency that he is a diabetic and he has Hepatitis C. His medical records indicate that he has been taking illicit drugs while in detention and he is regularly treated for headaches and other minor issues. Other than those medical conditions and health complaints contained in the IHMS, the applicant otherwise did not provide any evidence of any further mental health issues, disabilities or health complaints from which he suffers.70. The applicant submitted that the IHMS reports listed 17 incidents that relate to the applicant harming himself. The majority of such incidents were said to have occurred in 2015 and 2016 with the most recent on 4 April 2018. On that occasion, the IHMS report indicates that a fellow detainee reported that the applicant was going to selfharm unless he got the bottom bunk in his room, a fact which was denied by the applicant. The applicant supplied a report from Foundation House dated 14 June 2016 which does not provide any insight into the applicant’s medical needs. The applicant has not provided any medical or psychological report that would assist the Tribunal in determining his current condition and if he requires ongoing treatment.71. While the IHMS indicates that the applicant suffers from depression and PTSD there is no evidence that the applicant requires ongoing medical treatment for those conditions. The applicant did not provide any medical or psychological report in relation to his current condition. The Tribunal accepts that by being held in detention the applicant may become depressed and suffer from anxiety. However, given the lack of medical evidence, it is not able to assess the level of care required by the applicant. However, it notes that the IHMS reports more recent consultations have involved the administration of methadone treatment and more general health care rather than ongoing mental health or psychological treatment. As such, there is no evidence that the applicant suffers from ongoing mental health issues that would significantly differentiate him from Iraqi society.72. The country information reports that mental health care services are available in Iraq. The bulk of those services are located in Baghdad, close to the applicant’s previous home in Waist. There are also services located in the southern governorates. The reports do indicate however, that the level of mental health care is limited in Iraq as against the size of the population. However, the Tribunal has found that the applicant is an Iraqi national and as such there is no evidence that he would be denied mental health services. He would be entitled to such services commensurate with other citizens of Iraq and as such does not face real chance of being seriously harmed on account of his mental health needs.73. The applicant claimed that he suffers for hearing loss, epilepsy, opioid dependency, anxiety and depression, Hepatitis C and PTSD for which he requires treatment. However, the applicant did not provide any medical report as evidence that he suffers from each condition as claimed and to what degree. The applicant did not claim that he would be denied medical treatment in Iraq by reason specified in s.5J(1)(a) of the Act or a convention reason. He has, however, claimed that he will not be able access appropriate medical treatment and psychological treatment in Iraq due to a general shortage of medical care. However, the country information indicates that Iraq has a mixture of public and private hospitals, and primary health care is provided by both private and public clinics. While it states that health infrastructure suffered from decades of conflict, it notes that even before the rise of ISIL, many primary health are facilities were under-resourced. Nevertheless, the Tribunal has found that the applicant is an Iraqi national and as such there is no evidence he would be denied medical care in Iraq. As a result, the Tribunal finds that the applicant would be able to access health care in Iraq at the same rate as other citizens. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed by reason of being denied access to health care services in Iraq.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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