Kent v Minister for Immigration
[2007] FMCA 2162
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KENT v MINISTER FOR IMMIGRATION | [2007] FMCA 2162 |
| MIGRATION – Decision to remove person from Australia – relevant considerations – medical records. PRACTICE & PROCEDURE – Costs – injunction – procedural fairness – availability of documentation. |
| Migration Act 1958, ss.198, 198(6), 417 |
| Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368; (2006) 155 FCR 465; (2006) 236 ALR 99; (2006) 97 ALD 68 Li v Minister for Immigration & Multicultural Affairs [2002] FCAFC 181 |
| Applicant: | MR KENT |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | MLG 1134 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 10 September 2007 |
| Date of last submission: | 10 September 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 11 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms N. Karapanagiotidis |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondent: | Ms Miller |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The injunction order made 17 August 2007 be dissolved.
The application filed 17 August 2007 be dismissed.
There be no orders as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Kent v Minister for Immigration is approved pursuant to s.91X of the Migration Act 1958.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 1134 of 2007
| MR KENT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
The applicant arrived in Australia on 8 August 2005 on a ship. He applied for a protection visa on 25 August 2005 which was refused by a delegate of the minister. Subsequently, this was reviewed by the Refugee Review Tribunal who also rejected his claim. Judicial review proceedings were brought, and ultimately the Full Court of the Federal Court dismissed the appeal on 22 August 2006, bringing that matter to a close. Since then, there have been two applications by the applicant to the Minister pursuant to s.417, seeking that the Minister issue a visa to him, both of which have been refused.
The matter comes before the court today on an application to review a decision made by an officer of the minister's department under s.198 to remove the applicant from Australia and return him to Pakistan. The relevant part of s.198 is s.198(6) which contains a number of subclauses. It is not disputed that each of the subclauses has been fulfilled in this case. The only dispute is whether or not it was reasonably practicable to remove the applicant from Australia at the time that the Minister sought to do so.
This leads to four issues that were argued before me. The first was whether or not the question of whether he is medically fit to travel is a jurisdictional fact in determining whether it is reasonably practicable to remove him from the country, and therefore a factor for the court to determine on evidence; secondly, if it is a matter for the officer to determine, whether the officer failed to take relevant considerations into account or indeed ask the right question; thirdly, whether the officer took irrelevant considerations into account; and fourthly, whether the decision was so unreasonable that no reasonable decision‑maker would have made it.
Issue 1
With respect to the first issue, the matter has been the subject of detailed consideration by Besanko J in Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368; (2006) 155 FCR 465; (2006) 236 ALR 99; (2006) 97 ALD 68 in the Federal Court. His Honour found that the decision under s.198 was a privative clause decision, and not a jurisdictional fact for the court to determine (see para.39 and following). His Honour, however, noted that it is a matter that can be the subject of judicial review or jurisdictional error.
Counsel for the applicant points out that this is a single judge decision of the Full Court and that the single judge was not exercising the powers of the Full Court of the Federal Court, and therefore, as a matter of strict interpretation of the doctrine precedent, it is not technically binding upon me. She then referred me to the case of Li v Minister for Immigration & Multicultural Affairs [2002] FCAFC 181.
It appears that there was no specific consideration of whether or not this is a jurisdictional factor for the court to determine or a matter to be determined as a judicial review for jurisdictional error in the decision in Li. Li's case is not referred to by Besanko J in Beyazkilinc.
It appears to me that at best what can be said is that there are comments in obiter in Li which may indicate a preference for a view that the fact is one for the court to determine, but not even to the point of being a clear obiter statement. The discussion by Besanko J in Beyazkilinc is detailed and specifically addresses this particular point. His Honour comes to a clear and specific view which forms part of the ratio of the decision.
In these circumstances, that is where a judge of the Federal Court has considered a question in some detail and come to a specific conclusion, it appears to me that it is appropriate for me to follow the decision in the Federal Court. It is a question for the Full Court whether the decision of Besanko J was in error and not a question for the Federal Magistrates Court. In the circumstances, I therefore find that this is not a jurisdictional fact for the court to determine, but one properly determined by the officer, and subject only to review by way of judicial review for jurisdictional error.
Issue 2
The second issue relates to whether or not the officer failed to take relevant information into account or indeed asked the right question. To consider this question, one must first turn to the decision record. In this case, the decision record consists largely of a checklist compiled by the officer determining that the applicant should be removed. It lists a large number of factors which are not in dispute, and has a large number of attachment documents confirming the consideration of each of the questions in the checklist.
Whilst the initial document is in the form of a checklist, it is clearly a document that represents a record of a number of substantive considerations as is clear from the various attachments that are bundled with the checklist. The relevant parts that bear on the question of the applicant's medical condition and whether or not it was reasonably practicable to remove him are the last two items which are in the following terms:
The Case Manager has been informed of the impending removal, and if the client has special needs, an assessment of the client’s return needs has been considered in conjunction with the Case Manager.
[Mr Kent] will be escorted on his removal by a DIAC lead escort, one Mental Health Nurse & two NSW security escorts. He will be provided with two night’s pre-paid accommodation in Karachi upon arrival and a $A250.00 destitute allowance. Mr KENT will also have a pre-arranged (And paid for) appointment with a Mental Health professional in Karachi.
The Health Services Manager has completed a health discharge assessment for the client.
Evidence of this is at Attachment G
These items refer to attachment G, which is in the following form:
ATTACHMENT 6 – DETENTION SERVICE PROVIDER ASSESSMENT
Detention service provider assessment of detainee for aviation travel
Detainee details
Name: MR KENT
Date of Birth: 03/04/1973
Sex: Male
Citizenship: Pakistan
IDF: VIDC
Centre ID: VW16636
Information/assessment about the person:
Has any known history of violence, aggression or abusive behaviour (including in detention) YES
Has been involved in rioting NO
Known to have been charged with or convicted of a crime NO
Known to have engaged in sexually-related criminal activity NO
Known to have any other criminal history NO
Has escaped or attempted escape from custody YES
Is likely to attempt escape during transportation YES
Previously required restraint while being transported YES
Likely to be offensive or disruptive towards crew or passengers YES
Addicted to an illegal substance or has a history of substance abuse See medical
In a mental state requiring special attention YES
Has any medical conditions which may affect travel See medical
(including physical disability/impairment)
Required to take prescribed medication immediately before or during flight See medical
Has a history of self harm YES
Known to be third parties n the community who may NO
Disrupt the person’s departure/travel, facilitate the person’s escape or attempt to harm the person
Include details of any affirmative answers (or provide in attached documentation)
Client is a 24 yr old male from Pakistan housed in Stage 3 VIDC. He was transferred
From Baxter IDC on 24/7/07. Client is a long term client.
Any other issues you are aware of that may affect aviation security, or any other comments you wish to make (attach information if insufficient space)?
Multiple incidents of self-harm actual and attempted. Has attempted to abscond on two occasions recently.
CPM = Extreme Risk (of FLIGHT and SELF-HARM
This attachment refers to medical information and it appears from the material placed before me that this is a health summary report compiled by Dr Shaukat. In that health summary report, Dr Shaukat provides an opinion that the applicant was fit for travel and that there were no special considerations for travel. He also set out that "psychiatric review of his medication and mental health follow-up" was the follow-up care required.
The document, though, does have some defects. It is said to be a discharge/transfer that is being considered but neither of those boxes of the form have been filled in. Similarly, the reason for discharge/transfer has not been completed, even though there is a place where one could enter that the applicant was returning to his home country or to some other location.
Whilst the significant health issues identified in the form are particularly brief, nonetheless it identifies that the significant health issues in this case are mental health issues - including attempted self‑harm. I also note that the opinion of the doctor does not suggest any special considerations on travel, although the removal availability assessment quoted above clearly identifies that there would be three escorts: a lead escort, a mental health nurse, and two security escorts.
The opinion of Dr Shaukat is reliant upon the health records of the applicant. These include a discharge summary report by Dr Beech, a psychiatrist, under whose care the applicant was at Toowong Hospital for the period 2 August 2007 to 14 August 2007. Dr Beech stated at the end of his discharge summary:
It is the opinion of Dr Beech that he [the applicant] has suffered from an adjustment disorder and this is unlikely to remit until his immigration matters are finalised. There was no evidence of a depressive illness per se. He is fit for travel and should not require a medical escort. Psychiatric follow-up should be arranged by DIAC at Villawood and at his eventual placement.
It is apparent from the material in the records of the respondent, and a report prepared by a psychiatrist on behalf of the applicant for these proceedings, that the applicant is currently taking medications. These medications are not specifically referred to by Dr Shaukat.
In judicial review proceedings, it is not for me to undertake a merits review of the decision made by the officer of the department as to whether or not the applicant should be removed from Australia. The section, as explained in the cases, places a positive obligation upon the officer to remove the applicant from the country in the present circumstances, provided it is reasonably practicable to do so. This requires a consideration of his fitness for travel, having regard to his medical conditions.
It is apparent that the officer making the decision has, in fact, made proper inquiries in order to turn their mind to the health of the applicant, along with a number of other matters. The nature of the documents provided indicates that real inquiries were made about a large number of factors relevant under the section before the decision was made. It is clear that medical opinion was sought for this purpose.
I have considered whether or not the medical opinion is insufficient evidence on the basis that it does not have the box for ‘return to home country’ completed and also has some other details missing. However, in the context of the case, it was open to the officer making the decision to form their own view as to whether they were satisfied that the opinion of the doctor related to the travel that was being contemplated.
In the context of the case, where the opinion is being sought as part of the process for deportation after the applicant had already been returned to Villawood from Toowong Private Hospital, it appears to me that it was open to the officer to determine that the medical report did relate to the very travel for which it appears clear that the report was obtained. In these circumstances, it does not appear to me to have been a report that could not be relied upon by the officer. It was therefore a relevant factor to take into account and an evidentiary basis for the decision that was ultimately made.
It was argued that there were other parts of the medical file which ought to have been specifically considered and other notes - such as an example given in argument that at one point it was said that the applicant was too weak to walk to a medical examination because he had not been eating properly and that he had a flat aspect. There is, in his extensive medical history, a wide variety of ailments, both physical and mental, that have been addressed through various medical treatments over time.
It does not appear to me that the requirements on the officer making the determination that was made required them to necessarily consider more than the material that was before them. That is the opinion of a doctor who had reviewed the file and material of the applicant in this case. None of the other matters are, in my view, of such moment that a failure to specifically mention them in the decision‑making record would show that the officer had failed to give them appropriate consideration. It does not appear that any of these matters could be argued to be in the nature of an integer that must be considered.
Indeed, this argument is - in substance - the logical conclusion of the ultimate position that the applicant seeks to propound, which is set out in his psychiatrist's report (obtained after the particular decision was made), where the applicant's psychiatrist says:
Furthermore the assessment of Mr Kent's fitness to travel to Toowong Private Hospital obviously has no bearing on the assessment of his fitness to fly to Pakistan. It is self-evident that Mr Kent's distress, suicidal ideation and fears of persecution upon return are based on the prospect of the latter which appear to be a reality. Given that Mr Kent's level of depression and risk of suicide are dependent on the context of his environment, it is apparent that Mr Kent would always be unfit to travel to Pakistan. His incapacity to travel would remain, irrespective of whatever provisions for his escort and arrangements for further care and support in Pakistan are provided.
In my opinion, on the basis of the medical records provided, forcing Mr Kent to return to Pakistan would place him at grave risk of deterioration in his mental state and suicide.
It is not for the officer determining a deportation under s.198 to consider whether or not the applicant is at risk of persecution, as Dr Chopra appears to have concluded. Indeed, this case comes to the point that it does because the officer who considered his visa application for a protection visa and the Refugee Review Tribunal all rejected his claims that he was at risk of persecution if he were to be returned to Pakistan. This does not appear to me to be a matter that was relevant that ought to have been taken into account. On the material placed before me, I am not satisfied that it has been established that the decision‑maker failed to take relevant considerations into account.
Issue 3
The next issue was whether there was a failure in the sense that the officer took into account irrelevant considerations. It was initially argued that the opinion of Dr Beech was not a matter that was relevant for consideration in this case. It appears to me that it was clearly relevant as Dr Beech was specifically addressing the fitness of the applicant to travel at the very least from Brisbane to Sydney, if not more generally.
Even taking Dr Beech's opinion at its most limited, it is evidence of a specific assessment, by a person who had recently reviewed the applicant and had the applicant under his care, that the applicant could in fact undertake air travel in the circumstances as set out by Dr Beech. It also provided a reviewed diagnosis of adjustment disorder with anxious mood as opposed to depressive illness and ruling out psychoses.
In the circumstances of this case, I do not find that this is an irrelevant matter for the decision‑maker to have had regard. Indeed it necessarily forms part of the overall medical history of the applicant that needed to be considered in order to determine whether or not it was reasonably practicable to remove him from Australia.
Issue 4
The final matter is whether the findings of the officer were so unreasonable that no decision‑maker would have reached such a conclusion. In my view, it was clearly open to the decision‑maker to conclude that the applicant was fit for travel in light of the evidence of the doctor who reviewed the file and the support provided for that by the discharge summary of Dr Beech.
It is not for me to review the medial records and then form my own view on the merits, nor to undertake an extensive hearing and compare the evidence available to the decision‑maker with the more recent opinion of the psychiatrist of the applicant, as this would be to engage in merits review. The material that was before the decision‑maker was sufficient to provide a basis upon which a decision‑maker could come to the view that this decision‑maker did reach.
Clearly, if a decision has to be made again in the future about removing the applicant, the decision‑maker will have to be provided with a copy of Dr Chopra's report, the one obtained by the applicant, as a further item of medical evidence for consideration by the decision‑maker and/or any expert engaged to review the ability of Mr Kent to fly to consider whether or not it is reasonably practicable for him to be returned to Pakistan.
Conclusions
I have reached the view that the applicant has not ultimately been able to establish a ground of review on the matters that are argued. I note for the record that it was not argued that the applicant ought to have been provided with an opportunity to be heard, nor was it argued that the time frames for the decision in some way gave rise to a question of jurisdictional error. As this was raised with counsel and specifically not pursued, I have not specifically considered it in the reasons in this decision.
In the circumstances, I therefore refuse the application, and dissolve the interim injunction that I earlier issued in the matter.
Costs
I should also record the circumstances by which this case came before me as they are somewhat unusual. It first came before me on a Friday night when I issued injunctions shortly before 9 pm on material indicating that the applicant was to be placed on a flight to Pakistan, which was leaving at 9.15. It seems from subsequent material that the flight was probably scheduled to take off at 10 pm, but no doubt the 9.15 cut-off time was so as to avoid major disruption to international flights, which would involve hundreds of people and enormous expense.
The matter came before me urgently as the solicitors who had been acting for the applicant for a considerable period of time were not given more than several hours’ notice of the decision to remove the applicant from the country. Unfortunately, because it was a Friday evening, it seems that although the solicitors for the applicant quite properly notified officers of the Department that they were bringing the application (and I should say the Department quite properly acted upon the oral advice of the solicitors, when they obtained the injunction, that an injunction had been issued), the circumstances were such that the records, including the removal availability assessment and the attendant medical reports, were not readily available, and not sent to the court to consider as part of the application for an injunction, nor it seems was the decision to give the applicant less than 48 hours' notice of his removal and the reasons for that made available to his solicitors at that stage. It is easy to see that the solicitors for the applicant felt that they had no option but to apply for the injunction in the unusual circumstances as they unfolded.
Once the injunction was granted, the matter has proceeded to a hearing in which the applicant has ultimately been unsuccessful. It has been put to me that, at the very least, by the time the material was fully disclosed by the Minister, the applicant could have reviewed it and formed the view that he was not going to be successful and would not have pursued the proceedings beyond that point. There is considerable strength in that argument.
It is, however, also relevant to take into account that the applicant has incurred expenses early in the proceedings brought about by the nature of the removal decision. I say that without intending that there be any negative connotation towards the officers of the department who were also acting in furtherance of their own specific duties, but that it displays a set of circumstances where a number of professionals in different aspects of the case are fulfilling their duties and obligations and, in the circumstances of this case, it transpires that they are somewhat at odds.
It may well be that, in the future, it will be important for there to be some administrative system in place so that this material can be readily available to the officers of the department after hours, so that if such short-notice removals occur and applications are brought to the court after hours, the material is available to be provided. However, I also note this is not a common application and it may be that until this application occurred, the need for such process had not been identified before.
It is in this context that I must decide the costs question. I take all the circumstances of this case into account. I take into account the usual proposition that costs follow the event unless there is some reason to depart from that rule. Balancing all of the matters referred to above and the nature of the decision in this case, I ultimately find that no order for costs is an appropriate order in this case.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Acting Associate: Robin Smith
Date: 19 November 2008
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