FCT17 v Minister for Immigration
[2019] FCCA 1167
•3 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FCT17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1167 |
| Catchwords: MIGRATION – Judicial review – Immigration Assessment Authority – whether failure to properly consider whether exceptional circumstances to justify consideration of new information – where new information was not previously known – connection between new information and applicant’s claims – whether material error made. |
| Legislation: Migration Act 1958 (Cth), s.473DD. |
| Cases cited: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 CHF16 v Minister for Immigration and Border Protection (2017) 162 ALD 1 AQU17 v Minister for Immigration and Border Protection (2018) 162 ALD 442 |
| Applicant: | FCT17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESMENT AUTHORITY |
| File Number: | ADG 471 of 2017 |
| Judgment of: | Judge Young |
| Hearing dates: | 18 and 19 February 2019 |
| Date of Last Submission: | 19 February 2019 |
| Delivered at: | Darwin |
| Delivered on: | 3 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ower SC |
| Solicitors for the Applicant: | Camatta Lempens Pty Ltd Lawyers |
| Counsel for the Respondents: | Ms Battiste |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 10 November 2017.
A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 14 March 2017 according to law.
That the First Respondent pay the Applicant’s costs in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
ADG 471 of 2017
| FCT17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) affirming a decision of the Minister's delegate to refuse the applicant a protection visa.
The applicant is a Sri Lankan citizen of Tamil ethnicity. He was born in the Eastern Province of Sri Lanka in 1983 and is now 35 years old.
His protection claims are, in summary, that his family supported the Liberation Tigers of Tamil Eelam (“LTTE”) and members of his extended family were LTTE combatants. He said that in 2001 his parents refused to pay money to the Karuna Group paramilitary who were allied with the Sri Lankan government during the civil war. He said that when his parents refused to pay he was abducted and held in a jungle camp. He said he was beaten but escaped and returned to his family.
Between 2003 and 2006 he worked in the United Arab Emirates. On his return, he worked on a farm and, later, in a shop but had to avoid paramilitaries.
In 2010, the applicant helped his father's cousin who was a Tamil National Alliance (“TNA”) candidate in parliamentary elections. The candidate won a seat and became a member of parliament but a losing group attacked people and property and the applicant was himself attacked and forced to go into hiding. In 2012 the applicant helped another TNA candidate campaign for provincial elections. This candidate also won a seat but the Karuna Group candidate was not successful and three weeks after the election, members of the Karuna Group came to the applicant's house and threatened to kill him but he was not there.
In October 2012 the applicant left Sri Lanka illegally by boat and came to Australia.
The applicant said that since his arrival in Australia paramilitaries have gone to his house looking for him. He said he fears the Sri Lankan authorities or associated paramilitaries will detain, interrogate, torture or kill him because he is a young Tamil male from the east, he is from a known LTTE family, he was publicly opposed to the paramilitaries, he was an active TNA supporter, and in 2012, he departed Sri Lanka illegally and sought asylum in Australia.
In 2016 the applicant suffered Acute Fulminant Liver Failure and underwent an emergency liver transplant at the Flinders Medical Centre in July 2016. The applicant made a submission to the Minister’s delegate prepared by his migration agent dated 22 December 2016. This set out the applicant’s claims and, under the heading “Complementary protection” said that he fears the healthcare system in Sri Lanka is inadequate to deal with his condition and that due to his Tamil ethnicity, his family LTTE links and his political opinion he will face discrimination when he attempts to access medical treatment for his condition. The submission said that the applicant was required to visit a liver clinic 3 to 6 times a month. As the only liver transplant units in Sri Lanka are in Colombo this would necessitate the applicant moving from his home and family in Eastern Province to Colombo and he would face destitution. The applicant provided a letter from his treating hepatologist, Dr Ramachandran, as part of the submission.
On 14 March 2017 the Minister's delegate rejected the applicant's protection claims, primarily on the basis that the applicant had only “low level” involvement with the LTTE and other groups and his “profile” did not place him at risk of harm. In doing so the delegate had regard to material provided by the applicant, including a letter dated 16 December 2016 from Dr Ramachandran, hepatology fellow in the Hepatology and Liver Transplant Medicine Unit at the Flinders Medical Centre. The letter explained that the applicant was a patient at the liver clinic at Flinders Medical Centre, described the development of his life-threatening condition called Fulminant Liver Failure and his liver transplant. The letter said that the transplant had been successful, that the applicant was recovering well and leading a normal life. The letter said that the applicant would need to take immunosuppressant medication throughout his life to help tolerate the new liver. It mentioned that he was taking three medications: tacrolimus, azathioprine and aspirin. The letter went on to say that the applicant needs regular long-term access to these medications and needs regular three-monthly follow-up blood tests and medical reviews in a liver transplant unit. In the case of a medical emergency he needs to be able to access medical help within 24 hours. If he is not able to access his anti-rejection medication he could develop fatal liver failure. The letter concluded by saying the applicant is well enough to work as long as it doesn't put him at high risk of developing infections since he is on anti-rejection drugs that suppress the immune system.
The delegate had regard to this letter and, in addition to considering the applicant's other claims, considered the medical needs of the applicant in some detail and the consequences if he were to return to Sri Lanka. In the context of considering the applicant’s claim that due to his race and profile he would be unable to access essential medical treatment the delegate made some general remarks about what she found was a generally robust public health system in Sri Lanka, although health outcomes tended to be worse in the north and east of Sri Lanka, partly as a result of the destruction of infrastructure and loss of human capital during the conflict. It was said that free health services have been available to every Sri Lankan citizen without any discrimination for more than six decades. It was observed that generic medicines were widely used in Sri Lanka to keep prices down and more than 67% of medicines surveyed required less than a single day's average wages to purchase a one month supply. The delegate referred to a 2009 National List of Essential Medicines, including a number of common immunosuppressant medicines, including azathioprine and others, although tacrolimus was not specifically mentioned by the delegate. The delegate noted that these medicines were, according to a Sri Lankan Ministry of Health publication, intended to be:
… available within the context of functioning health systems at all times, in adequate amounts, in the appropriate dosage forms, with assured quality, and at a price the individual and the country can afford.
The delegate also noted that the first successful liver transplant took place in Sri Lanka in June 2010 in Colombo. It was said that two hospitals in Colombo now perform liver transplants.
The delegate said she had not found any evidence of discrimination against Tamils in accessing healthcare services in Sri Lanka, that is, Tamils with the applicant's profile. The delegate also considered whether the applicant's illness "has reached a critical stage so that it would be inhumane to deprive him of the current treatment and/or care he is receiving." She noted that the evidence provided in Dr Ramachandran's letter stated that the applicant has recovered well from the surgery and is leading a normal life. The delegate referred to the applicant's fear that there would not be emergency services available in Sri Lanka and that delays in medical care may put his life at risk. The delegate noted that there is a liver transplant unit in Colombo and that there are emergency services available although emergency services may be limited in areas outside of Colombo. She said this was an issue faced by all Sri Lankans and not one specific to Sri Lankan Tamils. The delegate was not satisfied that the applicant would be denied access to medical care and/or treatment in Sri Lanka due to his claimed profile and/or for his race as a Tamil.
During his interview with the delegate the applicant also said that he had recently been advised that his younger brother had died, apparently by suicide, but the family believed he was murdered. The applicant was not able to provide any details to support this suspicion. The delegate was not satisfied that the death of the applicant’s brother was related to the applicant’s protection claims.
The applicant's claims for protection were rejected.
The applicant sought to have that decision reviewed by the Authority.
On 30 March 2017 a further letter from the Liver Transplant Unit at Flinders Medical Centre was submitted by the applicant. This letter was signed by five hepatology specialists from the transplant unit, a social worker and a clinical services coordinator from the unit. This letter said that it is "vital that the applicant be granted permission to stay in Australia permanently for reasons pertaining to his medical status." The letter outlined briefly the history of his illness and the liver transplant. It mentioned that he was required to take immunosuppressant medication every day to prevent rejection of the transplanted liver. It said that the cost of the medications was high but was heavily subsidised for all transplant patients. It said the non-subsidised cost of tacrolimus at the applicant's current dose was $463 for 100 days’ supply and $31.27 for 100 days of azathioprine. It said that the applicant required both medications. The letter went on to say:
We are uncertain whether these medications are available to him in his country. Furthermore, access to these life preserving medications in his country, should he be sent back, may be financially out of his and his family's reach to afford. If he is not able for any reason to take either of these medications, there would be a high risk of liver rejection and death at this point post-transplant.
The letter said that other potential complications after transplant include infection and that it was important that he not be exposed to communicable diseases that are prevalent in the community. It said that it was crucial that he have access to clean water and a hygienic living environment. He also needed appropriate vaccinations to help prevent infection. If he acquired an infection he would need immediate medical attention and appropriate treatment because an untreated infection can result in sepsis and death. The letter mentioned some other commonly experienced complications and said if any of those complications were to occur he would need access to immediate specialist medical treatment. The letter went on to say:
[The applicant's family] lives seven hours away from the nearest hospital that could provide this treatment - again, so long as he could afford it and so long as he was given access to it. If he became unwell, he would need assistance from a carer or his family, to monitor his well-being, to support his access to treatment and to provide food and accommodation whilst he was recovering.
The letter also said that there would be a risk to the applicant's life should he be detained for any period of time without access to his immunosuppressant medications. The letter said:
We understand that the likelihood of detention, should he be returned to Sri Lanka is extremely high. All liver transplant patients including [the applicant] require close and regular follow-up and ongoing engagement with liver transplant unit staff in order to maintain good graft function. [The applicant] currently needs monthly blood tests and sees his transplant specialist monthly. He presently has access to a 24-hour service from liver transplant coordinators who provide advice and urgent medical advice should he become unwell.
The letter went on to say that:
… since undergoing an emergency liver transplant and suffering subsequent psychological adjustment issues, since learning that his younger brother has died in suspicious circumstances [referring to the apparent suicide of the applicant’s brother in Sri Lanka in December 2016] and most recently, since learning that his protection visa application and permanent residency has been denied, his mental health has significantly deteriorated. He is severely depressed and shows signs of suffering traumatic stress. It is now been referred to STTARS for further counselling and also to a psychiatrist.
The letter said that, in the view of the signatories, the applicant should be allowed to remain in Australia, with help from counselling and with a sense of security that permanent residency would provide, and in those circumstances he would recover his mental health. The letter went on to say that, should he be returned to Sri Lanka, the signatories feared that his progress would be lost due to the remoteness of his family's location and the consequent difficulty of accessing health services. The signatories feared that the applicant's mental and physical health may deteriorate seriously if he loses access to the care he has required in Australia.
The letter concluded by saying that the signatories had:
… grave concerns for the applicant's future quality and longevity of life should he be returned to Sri Lanka. We feel that the risks to his life in being returned to a country where he would not have access to the necessary aftercare his transplant requires, where he may be detained for uncertain periods in non-supportive and potentially unhealthy environments and where as a member of a persecuted group, his physical and mental well-being will continue to be threatened – these risks to his life are unacceptable.
The signatories said they supported the applicant being given protection and being given permanent residency status, to preserve his life and the second chance that the liver transplant has given him. The signatories concluded by saying that they believed, in time, the applicant will make a valuable contribution to this country.
The letter did not refer to the earlier letter from Dr Ramachandran, who was one of the signatories to the letter, and did not refer to the delegate's decision of 14 March 2017. In particular, it did not point to any error or inaccuracy in either the earlier letter from Dr Ramachandran or the delegate’s discussion of the Sri Lankan health system and its capacity to provide effective healthcare to the applicant.
The only parts of the amended application for review pressed at the hearing were as follows:
1.The Immigration Assessment Authority ("IAA") constructively failed to exercise jurisdiction by not properly applying the test set out in section 473DD of the Migration Act 1958 (the Act), and/or by asking itself the wrong question which led the IAA to make an error that was material.
Particulars
1.1 The applicant through his representative provided to the IAA new information as defined by section 473DC of the Act, being:
1.1.1 A letter from the Liver Transplant Unit at Flinders Medical Centre, dated 30 March 2017 ("the new medical letter")…;
1.1.2…
1.1.3…
1.1.4…
(together and separately, "the new information").
1.2 In considering whether exceptional circumstances existed to justify considering the new information, the IAA made a number of errors demonstrating its misunderstanding or misapplication of the tests set out in section 473DD.
Particulars
1.2.1 In considering the new medical letter, the IAA was satisfied that the information was both credible and personal in respect to the test set out in section 473DD(b)(ii). The IAA's consideration of whether the information contained within the new medical letter could have been provided earlier alone appears to inform its consideration of whether exceptional circumstances exist, which is a misunderstanding or misapplication of the test within s 473DD.
1.2.2 …
1.3 …
In my view this one ground can be succinctly stated as follows: the Authority misapplied section 473DD in deciding whether it was satisfied that there were exceptional circumstances to justify considering the letter from the Liver Transplant Unit at Flinders Medical Centre dated 30 March 2017 (‘the new medical letter’) by confining itself to the question of whether the letter could have been provided earlier.
Submissions
The applicant’s written submissions supplemented this single ground. He said there were six errors in the Authority’s approach.
First, he said the Authority applied a narrow construction to the meaning of “exceptional circumstances”. He said the Authority failed to take into account his claims and limited its consideration to the timing of the “new medical letter” (a description which I will adopt), the lack of explanation as to why it was not sought earlier and an observation that the applicant’s mental health concerns were not raised in any prior claims. He relied on Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 and CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192.
Secondly, he said that the Authority only assessed the “new information” in the new medical letter with reference to the applicant’s mental health concerns. It should have also considered the information in the letter about the dangers to the applicant if he could not access necessary medications, the claim that his family lived seven hours from the nearest hospital, necessary aftercare, the claim that he may be detained for uncertain periods in “non-supportive and potentially unhealthy environments” and the fact that he is “a member of a persecuted group”.
Thirdly, the applicant said that the Authority failed to consider whether circumstances were such as to “justify” consideration of the new medical letter. He referred to MIBP v BVZ16 at [42] where White J said that “exceptional circumstances will be those out of the ordinary course and which will justify the new information being considered even though it had not been provided to the Minister at the time of the s 65 decision.” (emphasis added in the submission). He also relied on AQU17v MIBP [2018] FCAFC 111 where the Full Court of the Federal Court, referring to Plaintiff M174 v MIBP (2018) 353 ALR 600 , said:
[14] … what will amount to exceptional circumstances is inherently incapable of exhaustive statement. … the matters for the Authority to take into consideration will vary from case to case.
[15] … It was necessary for the Authority to examine whether there was anything about the new information or the appellant’s circumstances which meant there were exceptional circumstances justifying consideration of the new information. …
The applicant submitted that, critically, information in the new medical letter “related to the circumstances of the applicant’s liver transplant and the need for medical ‘aftercare’”. This was said to be “directly relevant” to the applicant’s claims and his fear of arbitrary detention. He said the Authority failed to ask itself whether this amounted to an exceptional circumstance that justified considering the new information.
Fourthly, the applicant submitted that the Authority erred in “failing to examine” the new medical letter as having been signed by Dr Ramachandran who also signed the earlier letter and whether the new medical letter was “supplementary” to the earlier letter and therefore an “exceptional circumstance”. He also said the Authority considered only the circumstances about the applicant’s mental health. This was an unduly and unreasonably narrow approach and the Authority failed to apply this under s 473DD(a).
Fifthly, the applicant said the Authority applied the wrong test by asking itself why the new medical letter was “not sought earlier” rather than whether the letter “could not have been provided” earlier. It was implied that this distinction was significant because the new medical letter was written three weeks before and could not have been provided earlier than that. It was said that this demonstrated the Authority’s misunderstanding or misapplication of section 473DD.
Sixthly, the applicant said the Authority’s approach to the new medical letter that it achieved a result so unreasonable that it “could not have reached if proper reasoning had been applied in the exercise of the statutory power in particular circumstance” relying on Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [83].
The first respondent pointed out, correctly, that the applicant’s written submissions developed the arguments in support of relief in a different way to the grounds in the amended application. It might also be thought that the submissions contained a high degree of repetition and overlap. The submissions, or the first five points, could, in my view, be succinctly stated as alleging that the Authority was
(a) in error in confining itself to the question of whether the letter could have been provided earlier; and
(b) by concluding that the only “new information” was about the applicant’s mental health; thereby overlooking
(i)the assertions in the “new medical letter” that the applicant’s family (and, by implication, the applicant if he returned to Sri Lanka) lived seven hours from the nearest hospital and necessary aftercare; and
(ii)the claim that he may be detained in unhealthy conditions posing a serious risk to his health; and
(iii)he was a member of a persecuted group.
The submission contained one additional allegation: that the decision was unreasonable. The Minister did not take issue with that because he said he was not prejudiced in responding to the new points. In my view, the applicant’s written and oral submissions on unreasonableness did not take the matter beyond bald assertion or were indistinguishable from the other grounds of alleged error.
In oral argument Mr Ower, senior counsel for the applicant, said that there were three relevant differences between the content of the letter dated 16 December 2016 from Dr Ramachandran (“the first medical letter”) and the new medical letter. First, the new medical letter described the applicant’s medical condition in more detail. Secondly, the new medical letter referred to the applicant’s “severe depression” whereas the old medical letter said the applicant was “recovering well”. Thirdly, the new medical letter addressed the applicant’s likely circumstances should he be returned to Sri Lanka whereas the old medical letter simply contained a “clinical diagnosis” of his condition.
I generally agree with these observations. However, some of the information in the new medical letter was not simply additional “detail” but was additional or different information. An additional piece of information in the new medical letter concerned the frequency of medical reviews needed by the applicant. The old medical letter said the applicant “needs regular 3 monthly follow up blood tests and medical reviews in a liver transplant unit”. The new medical letter said the applicant “currently needs monthly blood tests and sees his transplant specialist monthly”. This difference was not explained.
Another additional piece of information in the new medical letter concerned two of the immunosuppressant medications required by the applicant: tacrolimus and azathioprine. The new medical letter mentioned the high cost of these drugs in Australia and questioned whether they were available in Sri Lanka. The delegate’s decision had noted that generic forms of azathioprine and other common immunosuppressant medicines were available in Sri Lanka at affordable prices, although the delegate did not expressly mention tacrolimus.
However, the applicant’s written submission to the Authority did not suggest that the applicant was unable to access necessary immunosuppressant medicines in Sri Lanka. This information in the new medical letter seems essentially speculative about an issue not raised by the applicant.
Counsel for the first respondent, Ms Battiste, emphasised three aspects of the Authority’s approach.
First, she noted that the applicant’s same solicitor/migration agent (Ms McGarity) had prepared the protection visa application, was present at the protection visa interview and provided further material after the interview. It was implied that the failure to provide all available and relevant information to the delegate was thus not explained by any discontinuity in the applicant’s representation.
Secondly, she submitted that the Authority accurately summarised the contents of the new medical letter and accepted that the information was new and credible “thereby addressing s 473DD(b)(ii) of the Act”, according to the submission. Satisfaction of one of the alternative criteria in s 473DD(b) is necessary if new information is to be considered under the exceptional circumstances rubric in s 473DD(a).
The criterion in subsection 473DD(b)(i) is that the new information “was not, and could not have been, provided to the Minister before the Minister made the decision under section 65”. The other criterion in (b)(ii) is that the new information “ is credible personal information which was not previously known, and had it been known, may have affected the consideration of the referred applicant’s claims”.
The respondent listed the additional “detail” in the new medical letter. I accept that the respondent’s list is accurate, although I do not necessarily agree that the matters included are simply “detail”:
1. Information about the cost in Australia of the medication required by the applicant (emphasis in submission);
2. An expression of uncertainty about whether the applicant could obtain necessary medication in Sri Lanka (this issue was considered by the delegate although, as noted, without express consideration of one of the drugs, tacrolimus, said by the applicant’s doctor to be required by him);
3. An expression of uncertainty about whether the applicant could afford necessary medication in Sri Lanka (another issue considered by the delegate);
4. Information about the potential complications, including infection, that can affect an immunosuppressed patient such as the applicant and, should such complication or complications eventuate, the need for immediate specialist treatment;
5. An assertion, evidently based on information from the applicant, that his family “live 7 hours away from the nearest hospital that could provide this [specialist] treatment”, and an assertion that the applicant would need care and/or family support if he developed such complications and a claim that his father is elderly and his family could not afford to relocate to provide such care or support;
6. An assertion that if the applicant was detained “for any period of time” without access to his immunosuppressant medications his life would be at risk;
7. An opinion that the applicant was “severely depressed” and identifying contributing factors including his history of “trauma” in Sri Lanka (said to have been identified in a psychosocial assessment before his transplant), his liver transplant, “psychological adjustment issues” following the death of his younger brother in “suspicious circumstances” in Sri Lanka in 2016 and, more recently, learning that his application for a protection visa and permanent residency had been rejected.
8. A statement that the applicant was making a good recovery after his transplant due to the professional health and social services he has received in Australia and the expression of a “fear” that the progress he has made will be lost due to “the remoteness of his family’s location and consequent difficulty of accessing health services”. It was asserted that the applicant’s physical and mental health “may deteriorate seriously if he loses the access to the care he has received in Australia”.
Thirdly, she submitted that the Authority noted that it was not in dispute before the delegate that the applicant had undergone a liver transplant and that the delegate had regard to the facts in the old medical letter. She said that the Authority, considering the “overall circumstances”, was not satisfied that exceptional circumstances existed to justify considering the new medical letter and, as an indication that the Authority had taken all these matters into account pointed to the language used by the Authority at [9] of the decision: “Given the circumstances outlined above, I am not satisfied exceptional circumstances exist to justify considering the new medical letter” (emphasis added in submission).
She said of the new medical letter that
… the IAA correctly appreciated that it was credible personal information: s 473DD(b)(ii). It was not satisfied that the additional detail in the letter which constituted the new information could not have been provided to the delegate.
I accept this is an accurate précis of the Authority’s reasoning.
Consideration
Part 7AA of the Migration Act provides for a fast track review process. The review is carried out by the Authority on the papers that were before the delegate. The Authority may get new information that was not before the delegate that it considers relevant but does not have a duty to get, request or accept new information. For the purpose of making a decision it must not consider new information unless the criteria in s 473DD are satisfied.
Section 473BB of the Migration Act provides that “new information” has the meaning given by subsection 473DC(1) which states:
Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
were not before the Minister when the Minister made the decision under section 65; and
the Authority considers may be relevant.
Section 473DD provides as follows:
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
The Authority declined to consider the new information provided by the applicant in the new medical letter. Its description of its reasoning is as follows:
5. The new medical letter states that in July 2016 the applicant underwent an emergency liver transplant, and details the medical risks he faces as a result of his permanently immunosuppressed state, or if he cannot access the medication he requires on a daily basis to prevent rejection of the new liver. The new medical letter also specifies both the routine and specialist medical care the applicant will require in the future, and the economic and social implications of managing his condition in Sri Lanka.
6. Although these issues were raised prior to the delegate’s decision, the new medical letter provide significantly more detail about them than the original medical letter, written by one of [the] specialists referred to above, which the delegate had regard to. The new medical letter also raises the issue of the applicant’s mental health, which was not before the delegate. Overall I am satisfied that the new medical letter constitutes new information, which is both credible and personal. However there is no explanation before me as to why a letter containing this level of detail, about issues which predate the delegate’s decision, was not sought earlier, if it was relevant to the applicant’s claims for protection.
7. This is particularly pertinent to the matter of the applicant’s mental health concerns. I note that, with the exception of the SHEV application refusal, the circumstances which the new medical letter now identifies as having contributed to the applicant’s state of “severe depression” – the previous trauma suffered in Sri Lanka, his post-surgery adjustment issues and the suspicious death of his brother – all occurred before, or were going on at the time of, his SHEV interview in December 2016. The new medical letter also notes that a psychosocial assessment was carried out prior to the transplant surgery in July 2016, in which the applicant’s medical team diagnosed the previous trauma he had experienced in Sri Lanka. Neither the applicant nor his representative raised the issue of his mental health with the delegate, nor was it referred to in the first medical letter.
Beyond the statement that it was satisfied that the new information was “credible and personal”, there is no express statement by the Authority that it was satisfied the other element of the criterion in subsection (b)(ii): the information was “not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims”, was met. The submissions of counsel for the Minister assumed that the Authority was satisfied that the criterion in subsection 473DD(b)(ii) had been met and this was not challenged by the applicant. As the new medical letter, as a document (distinct from its contents), was clearly new information that was “not previously known” to the applicant or the Authority this assumption may be correct.
It is to be noted, however, that the factor that is emphasised by the Authority, its concern that “… a letter containing this level of detail, about issues which predate the delegate’s decision, was not sought earlier, if it was relevant to the applicant’s claims for protection”, is substantially the same as the criterion in subsection (b)(i).
If the Authority was satisfied that one of the two criteria in subsection (b) was satisfied, as it appears it was, it was necessary to assess the “new information” as it pertains to the applicant’s individual circumstances raised in the claim for protection and decide if it was satisfied that there were exceptional circumstances to justify consideration of the new medical letter.
The Authority’s summary in paragraph [5] of its reasons, reproduced above, recognizes that the new medical letter gives information about the applicant’s liver transplant and confirms that he faces risks as a result of his immunosuppressed state and if he cannot access necessary medicines. It also recognizes that the new medical letter contains information about the routine and specialist medical care the applicant requires and will require in future and about the “economic and social implications” of managing his condition in Sri Lanka. It addresses, in broad terms, the information described at points 1, 2, 3, 4, 5 and 6 in paragraph [44] above.
In paragraph [6] of its decision the Authority makes two statements about the information in the new medical letter: first, that these “issues were raised prior to the delegate’s decision” and, secondly, that the new medical letter provides “significantly more detail”, with the implication that the new medical letter provides nothing other than “more detail”. (The Authority excluded the issue of the applicant’s mental health from this description and I will deal further with that below).
However, not all of these issues were raised prior to the delegate’s decision. The assertion that the applicant’s family, and by implication the applicant were he to return to Sri Lanka, “live 7 hours away from the nearest hospital that could provide this [specialist] treatment” (in the event of infection or other complications) was not raised prior to the delegate’s decision. The assertion that the applicant would need care and/or family support if he developed complications and a claim that his father is elderly and his family could not afford to relocate (to the place of the hospital, which was not identified) to provide such care or support was not raised prior to the delegate’s decision.
Further, it is, in my view, inaccurate to describe this information as “more detail”. It is new information which, on its face, raises a serious doubt about the practicability of adequate management of the applicant’s medical condition in Sri Lanka.
In assessing whether there were exceptional circumstances to justify consideration of the new medical letter the Authority focussed on the applicant’s failure to provide an “explanation … as to why a letter containing this level of detail, about issues which predate the delegate’s decision, was not sought earlier”. As noted above, I do not accept that all the information in the new medical letter is simply “detail”. The information I have identified about the distance of the applicant’s family’s home from a hospital providing specialist medical care is fundamental to any consideration of the practicability of managing the applicant’s medical condition in Sri Lanka.
It is true that the issue of managing the applicant’s medical condition was the subject of submissions to the delegate[1]. Those submissions said that the only “medical units” capable of providing care for “liver transplantees” were both in Colombo, referring to the two hospitals there identified by the delegate as having carried out liver transplants. The delegate accepted, on the basis of the first medical letter, that the applicant would need regular three monthly reviews and follow up at one or other of these hospitals. However, the issue identified in the new medical letter was a different one: the need for “immediate specialist medical treatment” in the event that the applicant developed an infection or other complication which could put him at risk of death. This was not the subject of submissions to or consideration by the delegate.
[1] RACS submission dated 22 December 2016, p. 16.2.
It is also true that the applicant did not offer an explanation about why this issue was not raised earlier and why the related information in the new medical letter was not provided earlier. There does not appear any obvious reason why it could not have been. However, some simple points may be made. It is understandable that both the applicant and his adviser may have been slow to identify all the factors to be taken into account in managing the complex medical and health needs of the applicant were he to return to Sri Lanka, particularly in the event of an emergency due to complications such as infection. It may be assumed that neither had any direct experience of those matters. The applicant’s experience after his transplant was confined to Adelaide, with ready access to specialist medical care. Further, the information is the subject of specialist medical knowledge. Additionally, the comprehensive information in the new medical letter, provided by multiple members of a specialist medical team, can, in my view, be assumed to have been obtained with some considerable trouble and effort.
The lack of an explanation as to why the new medical letter was not sought earlier is only one of the matters that might have been taken in account by the Authority in deciding whether it was satisfied there were exceptional circumstances to justify considering the new information. There were other factors, in favour of such a decision, that might have been taken into account including:
· The information about the risk of death from infection or other complications if the applicant could not obtain access to immediate specialist medical treatment in Sri Lanka was new information that was not before the delegate and was relevant;
· The information that it took seven hours to travel from the applicant’s family’s home to a hospital or medical facility was presumably something within the applicant’s knowledge but the significance of that was new information was not before the delegate and was relevant;
· The information that the applicant’s father is elderly and that his family could not afford to relocate (to the place of the hospital) to provide care or support to the applicant was within the applicant’s knowledge but the need for care and/or family support if he developed complications was new information and was not before the delegate and was relevant;
· The information generally about the importance and significance of these matters was the subject of specialist medical knowledge and was not information that the applicant or his adviser could be reasonably expected to know themselves;
· The new medical letter, written by multiple members of a specialist medical unit, may be assumed to have been obtained with some considerable trouble and effort; and
· While it may have been possible to seek or obtain the information earlier the failure to do so does not reflect on its reliability or credibility. The information was cogent and credible.
· More generally, the overall circumstances of the applicant may have been taken into account, in particular, his lifelong medical condition and vulnerability.
There were other items of information included in the new medical letter but, in my view, they are of a different, lesser quality and a finding that there were not exceptional circumstances to justify considering them is unexceptional. The availability and affordability of necessary medications in Sri Lanka, with the exception of tacrolimus, was considered by the delegate; the cost in Australia was irrelevant. The significance of the assertion that the applicant’s life would be at risk if he was detained without access to his immunosuppressant medications was dependent upon an assessment of the likelihood of detention which the medical practitioners who signed the new medical letter were not qualified to assess.
The Authority addressed the claims in the new medical letter about the applicant’s mental health but observed that these were not raised with the delegate. I accept that is correct but I am not satisfied that is necessarily to the point. The new medical letter identified several factors as having contributed to the applicant’s severe depression including (and leaving aside the question of the reliability of the claims) trauma in Sri Lanka, post-surgery adjustment issues and the supposedly suspicious death of his brother, each of which occurred before the delegate’s decision. The rejection of the applicant’s protection visa application was also said to be a contributing factor. It is not clear from the new medical letter when the applicant’s depression began; one possible interpretation is that it was precipitated by the visa refusal, although other factors may be said to have contributed. If so, the connection between the applicant’s depression and his protection claims, if any, was not explained in the letter and was of questionable relevance. It is not surprising that the Authority was not be satisfied that there were exceptional circumstances to justify considering this information.
The connection or lack of connection between the new information and the applicant’s protection claims, on one hand, and whether there were exceptional circumstances to justify considering it, on the other hand, were not expressly considered by the Authority in its discussion of s 473DD. However, at the end of its reasons the Authority, in its discussion of complementary protection, makes this observation:
In 2016 the applicant underwent a liver transplant in Australia and is required to take immunosuppressive medication for the rest of his life. The country information cited above indicates that the specialist care and medication that the applicant requires would be available in Sri Lanka. In any event, the unavailability of such services would not, in these circumstances, constitute arbitrary deprivation of life, because his death would not be the result of unlawful or extra-judicial conduct.
Neither the applicant nor the respondent made any substantial submissions about how the Authority, in considering s 473DD, had taken into account the question of how information about the applicant’s serious health condition pertained to his refugee claims or his complementary protection claims. Perhaps this is explained by the observation above that, apart from a single reference in the discussion of complementary protection, the Authority does not appear to have considered that issue. In my view the Authority was entitled or obliged to consider that factor also. This also has some bearing on the materiality of any jurisdictional error. This is discussed below.
Whether or not there has been jurisdictional error in the process required under s 473DD has been considered in a number of cases including by the High Court in Plaintiff M174/2016 v MIBP (2018) 353 ALR 600, by the Full Court of the Federal Court in MIBP v BBS16 [2017] FCAFC 176, CHF16 v MIBP [2017] FCAFC 217, MIBP v CQW17 [2018] FCAFC 110 and AQU17 V MIBP [2018] FCAFC 111 and by single judges in a number of cases including BVZ16 v MIBP [2017] FCA 958 and CIH16 v MIBP [2018] FCA 1317. Each of these cases was cited in argument. For present purposes an adequate summary of the law is contained in the following passage from CQW17 which refers to the applicant’s submissions in that case but which were accepted by the court:
[47] Third, the Authority took an inappropriately narrow view of the breadth of the expression ‘exceptional circumstances’, and in doing so made a similar error to that identified in BVZ16 at [9] and [35]-[37] and the Full Court in BBS16 at [102]-[106].
[48] In BVZ16 White J said (at [9]):
The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.
His Honour’s view was affirmed in BBS16 at [102]-[103] (Kenny, Tracey and Griffiths JJ) and cited with apparent approval by the Full Court in CHF16 at [17]-[18] (Gilmour, Robertson and Kerr JJ) and DYS16 at [31]-[33] (Tracey, Murphy and Kerr JJ).
[49] In BBS16 the Full Court said:
We are unpersuaded by the Minister’s contentions that in BVZ16 White J misconstrued or misapplied the term “exceptional circumstances” under s 473DD. We respectfully agree with his Honour’s reasons for concluding that the IAA in that case adopted an inappropriately narrow understanding of that phrase. In particular, we agree with his Honour’s findings and reasons that the requirements of subparas (a) and (b) of s 437DD are cumulative but may nevertheless overlap to some extent, with the effect that the IAA’s consideration of either or both of the limbs in subpara (b) may inform the IAA’s satisfaction under subpara (a) as to whether there are exceptional circumstances to justify considering the new information.
That is not to say, however, that the matters in subparas (b)(i) and (ii) are the only matters to be considered by the IAA in determining whether it is satisfied that there are exceptional circumstances to justify considering any new information.
[50] …
[51] The expression ‘exceptional circumstances’ in subpara (a) has a broad meaning and it is not possible to state exhaustively what factors will be relevant or what the Authority must consider in a particular case: Plaintiff M174 at [30]. The Authority is obliged to consider all relevant circumstances, and as White J observed in BVZ16 the matters in (b)(i) and/or (ii) will usually form part of the consideration. In the circumstances of the present case, the Authority did not evaluate the significance of the relevant part of the New Raid Information, or turn its mind to whether it was credible personal information capable of informing its satisfaction as to the existence of exceptional circumstances. On a fair reading of paragraph six, the Authority’s finding as to (b)(i) was decisive, and this bespeaks an overly narrow interpretation of the expression ‘exceptional circumstances’.
[52] With respect to the Minister’s arguments in the alternative, the Minister correctly observes that whether a failure to consider relevant material constitutes jurisdictional error will depend on considerations including the circumstances of the case, the nature and cogency of the material, and the place of the material in the assessment of the claims: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005]FCAFC117 at [77]; SZRKT at [112]. We do not, however, accept the Minister’s contention that the New Raid Information is peripheral, too vague or insufficiently cogent to be rationally probative in the Authority’s reasoning.
In relation to this case a number of points in the passage quoted above may be emphasised.
· One would expect the Authority to consider the matters in (b)(i) and (ii) when considering in a given case whether the circumstances are exceptional.
· However, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those matters.
· It may be improbable that the Authority could be satisfied, by reference to one matter only, that circumstances are not exceptional.
· Consideration of either or both of the limbs in subparagraph (b) may inform the Authority’s satisfaction or lack of satisfaction under subparagraph (a) but those are not the only matters to be considered by the Authority in determining whether it is satisfied that there are exceptional circumstances to justify considering any new information.
· The expression “exceptional circumstances” has a broad meaning and it is not possible to state exhaustively what factors will be relevant or what the Authority must consider in a particular case. The Authority is obliged to consider all relevant circumstances, which may require an evaluation of the significance of the new information.
· Whether a failure to consider relevant material constitutes jurisdictional error will depend on the circumstances of the case, the nature and cogency of the material and the place of the material in the assessment of the claims.
In the circumstances of this case, it was not necessarily jurisdictional error for the Authority, if it was satisfied that the criterion in subparagraph (b)(ii) was satisfied, to consider the criterion in subparagraph (b)(i) in deciding whether it was satisfied that there are exceptional circumstances for the purposes of subparagraph (a).
However, the Authority was obliged to consider all relevant circumstances having regard to the particular case, the nature and cogency of the material and the place of the material in the assessment of the applicant’s claims. If these matters obliged the Authority to consider matters beyond the criteria in subparagraph (b)(i) and (ii) it is jurisdictional error to fail to do so.
In my view, the circumstances of the case required the Authority to consider matters beyond that which it appeared to focus on and emphasise, namely the failure of the applicant to explain why the information in the new medical letter was not sought earlier. Other matters which it ought to have considered are those listed in paragraph [62] above. Further, I do not agree that the Authority’s characterisation of all the new information as “more detail” is accurate. While the new information was generally about the applicant’s medical condition it contained significant new information that could not be fairly characterised as “more detail”.
In my view the Authority’s approach involved an overly narrow interpretation of the expression “exceptional circumstances” and constitutes jurisdictional error.
Materiality
As noted above the Authority did not expressly consider whether or not the new information in the new medical letter pertained to the applicant’s refugee claims. It certainly did not conclude that the new information was irrelevant to those claims. However, the Authority considered the applicant’s health in its discussion of his complementary protection claims and concluded that it was irrelevant to those claims because any adverse health consequences of the applicant’s return to Sri Lanka relating to the distance of his home from specialist treatment in the event of an emergency would not constitute “significant harm” as defined in subsection 36(2A) of the Act because that harm must be intentional. Of course, if the applicant was arbitrarily detained without access to his medication that would constitute serious harm but the new information did not relate to the likelihood of such detention.
It is not clear to me how the applicant’s serious health condition pertains to his refugee claims and, in particular, the question of whether he has a well-founded fear of persecution. Although this issue was not explored by the Authority in its assessment of whether there were exceptional circumstances to justify consideration of the new medical letter, the applicant’s health condition, particularly the matters relating to the distance of the applicant’s family and home from specialist medical care in the case of emergency due to infection or other complication, is not something that has an obvious bearing on the applicant’s refugee claims. It is conceivable that if, as the applicant submitted, there was ethnic or other discrimination against the applicant or Tamils generally in the provision of health care in Sri Lanka that would amount to a risk of serious harm and persecution. However, the delegate and the Authority did not accept that was the case and the new information did not directly bear on that issue. Although it may be accepted that prolonged detention in unhygienic conditions may have very serious consequences for the applicant the new information did not bear on the likelihood of such detention.
The written submissions of the parties did not address this issue. In oral argument I raised the question of the materiality of any jurisdictional error. The parties referred me to the High Court’s decisions in Hossain v MIBP [2018] HCA 34 and MIBP v SZMAT [2019] HCA 3 and a discussion of materiality in a decision of Derrington J in CIH16 v MIBP [2018] FCA 1317.
It is not necessary to analyse these decisions in any detail but materiality of any error is a factor to be considered, whether as a component of jurisdictional error or as a factor going only to whether relief should be granted. In this case I am unwilling to enter into a detailed analysis of whether or not the Authority’s decision to refuse to consider the new medical letter deprived the applicant of the possibility a successful outcome. There are three reasons for that. First, the Authority did not address the significance of the new information in relation to the applicant’s refugee claims. Secondly, I did not have the benefit of detailed submissions on the issue. The parties’ submissions focused on whether or not the Authority had too narrowly construed s 473DD rather than the materiality of the new information. Thirdly, I am concerned that an analysis of the new information from the point of view of its materiality to the applicant’s refugee claims, in the circumstances of this case, moves uncomfortably close to a rehearing rather than review for jurisdictional error. I accept that the Authority’s error is material and I do not propose to deny the applicant relief as a matter of discretion.
The application is allowed and the matter will remitted to the Authority for reconsideration. The Minister is to pay the applicant’s costs according to the schedule in the court rules.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Young
Date: 3 May 2019
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