Re Jea Byung Park v Minister for Immigration and Ethnic Affairs
[1996] FCA 138
•13 MARCH 1996
CATCHWORDS
IMMIGRATION - judicial review - decision of delegate of Minister to refuse grant of permanent residence status - renal failure of applicant - whether treatment affordable in applicant's home country - whether decision unreasonable - whether sufficient weight placed on relevant consideration - whether all relevant matters considered - consideration of strong compassionate or humanitarian grounds - risk factor.
ADMINISTRATIVE LAW - judicial review - internal departmental submissions to decision-maker - submissions document provided to person affected by decision - subsequent request for reasons - whether submissions document constitutes reasons.
Administrative Decisions (Judicial Review) Act 1977 (Cth): s 5(1)(e) & (2)(g)
Migration Act (Cth) 1958: s 6A(1)(e)
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87
re: Jea Byung Park v Minister for Immigration and Ethnic Affairs
(No. VG 348 of 1993)
Judge: Heerey J
Date: 13 March 1996
Place: Melbourne
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VG 348 of 1993
)
GENERAL DIVISION )
B E T W E E N:
JEA BYUNG PARK
Applicant
- and -
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
JUDGE: Heerey J
DATE: 13 March 1996
PLACE: Melbourne
MINUTE OF ORDERS
The Court orders that:
The decision of the delegate of the respondent made 26 July 1993 refusing the applicant residence status in Australia is set aside.
The applicant's application for residence status and associated temporary entry permit is remitted for reconsideration by another delegate of the respondent in accordance with these reasons.
The respondent pay the applicant's costs including reserved costs.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VG 348 of 1993
)
GENERAL DIVISION )
B E T W E E N:
JEA BYUNG PARK
Applicant
- and -
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
JUDGE: Heerey J
DATE: 13 March 1996
PLACE: Melbourne
REASONS FOR JUDGMENT
The applicant is a citizen of the Republic of Korea having been born in that country on 3 March 1948. He seeks an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of a decision to refuse him an entry permit on "strong compassionate or humanitarian grounds" under s 6A(1)(e) of the Migration Act 1958 (Cth).
The applicant arrived in Australia on 14 November 1987. He was granted a temporary entry permit (student) valid until 28 February 1988. That was subsequently extended with validity until 30 July 1989. Since that date no temporary entry permit has been granted to him.
On 8 December 1988 the applicant's wife and two children came to join him. The children are now aged 16 and 9.
Early in 1989 the applicant began to suffer symptoms of renal failure. His studies suffered and on 14 November 1989 his student status was terminated due to lack of attendance.
On 15 December 1989 the applicant's solicitors made application on his behalf for grant of residence status under s 6A(1)(e) together with application for a further temporary entry permit and permission to work.
On 27 July 1990 the applicant suffered renal failure. He commenced dialysis treatment at Prince Henry's Hospital in Melbourne. The applicant's medical condition is that he will require either a kidney transplant or ongoing dialysis to remain alive. Up until January 1993 he received peritoneal dialysis. Since then he has been undergoing haemodialysis. Prince Henry's Hospital has been closed and his treatment continues at Monash Medical Centre, Clayton. Haemodialysis requires attendance three times a week for four to five hours each time. The applicant does not have Medicare entitlement. Monash Medical Centre have been carrying the cost.
On 17 September 1992 a delegate of the respondent advised the applicant that his application for residence status had been refused. On 15 October the applicant applied for reconsideration to the Migration Internal Review Office. A number of submissions were put on his behalf including a report from a renal physician, Dr Colin Wood.
A central question for the applicant's case was the prospect for treatment of his condition should he return to Korea. The case officer on 12 February 1993 sent a fax to the Australian Embassy in Seoul enquiring, amongst other things, as to various matters raised by the applicant. These were as follows:
He states that according to Korean custom, only Korean blood relatives are willing to donate kidneys. In his application he states that his parents are deceased and he was an only child.
Of the few kidney transplants that are performed in Korea between non-related people there is a very high failure rate.
The public health system in Korea only allows 6 months treatment in hospital after which a patient must find treatment from a private hospital which he must pay for himself. No financial assistance for this is provided by the Korean government.
The question here is, are his claims about the hospital system\Government assistance correct and, how likely is it that he will be left to fend for himself.
Due to the employment situation in Korea at present, it would be very difficult for Mr Park to find employment given that he has to spend some hours per day in dialysis.
By fax dated 13 May 1993 the Embassy replied stating amongst other things:
ONE OF THE STAFF OF THE MIGRATION SECTION HAS MADE EXTENSIVE ENQUIRIES REGARDING YOUR QUESTIONS IN YOUR FAX OF 12/2/93 AND FOLLOWING ARE THE RESPONSES:
THERE IS NOW A KIDNEY DONATION ASSOCIATION IN SEOUL (TEL. 706 0110) AND THIS WAS ESTABLISHED ABOUT 2 YEARS AGO. THERE ABOUT 500 POTENTIAL DONARS [SIC] REGISTERED, ALTHOUGH IN PRACTICE ALLOWING FOR MEDICAL COMPLICATIONS AND COMPATIBILITY TESTS THIS NUMBER WOULD BE SOMEWHAT REDUCED. THERE IS A WAITING LIST OF POTENTIAL RECIPIENTS OF SEVERAL THOUSAND. DESPITE THIS, IT IS NOW APPARENT THAT KOREA HAS MOVED AWAY FROM THE STATED TRADITIONAL CUSTOM OF ORGAN DONATION ONLY WITHIN THE CIRCLE OF BLOOD RELATIVES.
THIS NOT TRUE. THIS IS NO LONGER AN UNCOMMON OPERATION AND THEY ARE CARRIED OUT TO A GOOD TECHNICAL LEVEL.
BASICALLY TRUE ALTHOUGH THE PERIOD HAS BEEN RECENTLY INCREASED BY A PERIOD OF 30 DAYS (IE A TOTAL PERIOD FOR EACH CALENDAR YEAR OF ABOUT 7 MONTHS).
AGAIN BASICALLY TRUE. BECAUSE ALTHOUGH THE UNEMPLOYMENT
RATE IS MUCH LOWER THAN AUSTRALIA, THE AVERAGE KOREAN EMPLOYER IS MUCH LESS TOLLERANT [SIC] AND LESS LIKELY TO EMPLOY SOMEONE WITH KNOWN MEDICAL PROBLEM.
THIS INFORMATION WAS OBTAINED FROM OUR APPROVED PANEL HOSPITAL, HANKOOK HOSPITAL AS WELL OUR COLLECTIVE KNOWLEDGE OF THE LOCAL SITUATION.
In an earlier communication to the Department from the Seoul Embassy on 28 January 1992 a letter (undated) from the Hankook General Hospital in Seoul was enclosed which included the following statement:
Government controlled health insurance system is available for the person who is working at the place recognised by the government.
On 21 May 1993 the Department's Internal Review Office sent a fax to the applicant's solicitors requesting the latter's reaction to further information which had been provided and which might "possibly be adverse to Mr Park's case". The fax detailed a number of matters, some of which were concerned with the current and estimated costs of the applicant's treatment and the drain on public funds. It was said:
DIALYSIS IS REGARDED AS A SCARCE RESOURCE IN THAT THERE ARE MORE PATIENTS WHO WOULD BENEFIT FROM DIALYSIS THAN THERE ARE PLACES IN PROGRAMMES. IN THIS CIRCUMSTANCE IT IS LIKELY THAT MR PARK HAS DISPLACED AN AUSTRALIAN RESIDENT/CITIZEN.
It was stated that the annual cost of haemodialysis had been estimated to be in excess of $37,000 per annum, that additional associated costs would probably add $5000 per annum and blood transfusions and other resources a further $1200 per annum.
The fax continued:
Assuming Mr Park lives for 15 years, the average estimated life expectancy, his costs to public funds would be around $1.08 million. This amount includes the cost of a support pension plus ancillary benefits for a wife and 2 children if he does not work, which is around $18,000 p.a. on a total of about $72,000 p.a.
By a letter dated 5 July 1993 in reply the applicant's solicitors stated, amongst other things:
In relation to financial support for the family, we are instructed that Mr Park is very keen to work full-time if granted permanent residency, and feels that he is healthy enough to do so. In any case, his wife would be able to support the family if Mr Park was unable to work. Their eldest daughter is now 13 years old and she and Mr Park in Korea could look after the youngest daughter (who is 7 years old) whilst Mrs Park worked full-time.
The words "in Korea" have obviously been included by error. The context of the paragraph is concerned with the arrangements the family could make for financial support in Australia.
On 14 July 1993 the case officer submitted to the Minister's delegate a document of 14 pages headed "Departmental Submission on an Application for Reconsideration of a Decision (ARD) to Refuse Grant of Permanent Residence Status (GORS) on Compassionate or Humanitarian Grounds". The submissions document concluded:
FSummary/Recommendation
A reconsideration of the application confirms that the primary decision was fair and correct. Legislative and policy requirements have been properly applied and the merits of the case have been taken into consideration.
It is the view of the Department that the information contained in the Migration application and the ARD does not warrant approval as a special case outside policy. It is therefore recommended that the GORS application be refused.
Note:If the appeal is upheld, any policy requirements still outstanding will need to be addressed before the case may be approved.
Chris Cote (sgd)
Chris Cote
ARD Case Officer
14 July 1993
The copy of the submissions document which was in evidence bears alongside the case officer's signature the handwritten notation "Noted R Martin 23-7-93".
On 26 July 1993 a letter on the letterhead of the Migration Internal Review Office was sent to the applicant care of his solicitors. The letter was in these terms:
Dear Mr Park,
I refer to your Application for Reconsideration by the Immigration Review Panel of a decision refusing the grant of permanent resident status in Australia.
Your review application has been considered by the Immigration Review Panel, which examined the requirements of relevant legislation and Government policy and considered all the available evidence. The Panel took into account the particular circumstances of the case, including the information given in your review application and in a report provided by the Department. The Panel recommended that the review application be refused.
An officer authorised by the Minister for Immigration, and Ethnic Affairs studies the Panel's report and other information available on the case and accepted the Panel's recommendation.
The enclosed papers will help you to understand why your review application has been refused.
Because your application for an entry permit has been refused and your recommendation was also refused, your status in Australia is that of an illegal entrant. Any person who becomes an illegal entrant is given a `period of grace' in which to leave Australia.
Please report to the Compliance Branch, 55 King Street, Melbourne with your departure details. When you report to the Compliance Branch please bring this letter with you.
I regret that I do not have better news for you.
E Penay (Sgd)
for:
Robyn Martin
Manager
MIRO Victoria
Enclosed with the letter was a copy of the submissions document minus the concluding sentence ("Note: If the appeal is upheld etc ...") and the signature and description of the case officer and the notation by Ms Martin.
In my opinion the submissions document, in the form that it was sent to the applicant, is to be treated as containing reasons for the decision complained of. Reasons were subsequently requested under s 13 of the AD(JR) Act and a set of reasons signed by Ms Martin and dated 27 November 1993 ("the November reasons") were provided to the applicant's solicitors. However that event does not have the effect that the submissions document provided with the letter of 26 July no longer contained reasons for the decision which was then made and conveyed to the applicant. The submissions document was plainly sent to the applicant for the stated purpose of helping him "to understand why (his) review application (had) been refused". The fact that the submissions document came into existence originally as an internal recommendation is no reason for declining to treat it as containing the decision-maker's reasons if those reasons were in fact subsequently adopted by the decision-maker - as was the case: see Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 92-93. To the extent that the November reasons differed from those supplied in July, the question of what were in truth the reasons for the decision-maker's decision is a question of fact to be dealt with
like any other factual issue.
In the submissions document, after summarising the applicant's case, the case officer discusses the availability of kidney transplants in Korea. He notes that the applicant himself is on a waiting list for donors in Australia and therefore would be prepared to accept a transplant from persons other than blood relations. Note is made of the advice from the Australian Embassy that kidney transplants in Korea are "not uncommon and are being done to a high technical level" and that about 500 potential donors are registered. The case officer notes advice by a doctor from a hospital in Seoul approved by the Australian Embassy that dialysis and transplants are available and can be done in Korea. The case officer states that:
... on a general note, Korea is one of the `five Asian tigers' (along with Japan, Hong Kong, Singapore and Taiwan) which means that it has a first world level standard of living. This affluence is in many respects on a par with Australia's. This general impression is reinforced by:-
in a letter by Father Paul Carey of the Columban Mission on 22 November 1989 on behalf of the applicant, he commented that "a high standard prevails in the medical profession in Korea today";
a former principal migration officer at Seoul, who is now in Melbourne and returned in 1991 has stated that Korea is an affluent country with little or no obvious signs of poverty such as homeless persons on the streets.
These factors contradict and, I consider, outweigh the advice by Dr Wood stated on 9 October 1989 (and affirmed on 24 June 1993) that "the facilities for this treatment in Korea are very limited".
In conclusion, I consider that although in some respects the availability of kidneys for transplants with the level of expertise may be higher in Australia than in Korea, the available evidence suggests that the differences are not great in qualitative or quantitative terms. Certainly, in both countries there are delays in having transplants performed.
The major issue therefore seems to be the question of cost to the applicant which will be considered next. These claims relate to the cost of dialysis treatment and kidney transplants in Korea
compared to Australia.
The case officer then discusses the evidence as to estimates of cost and concludes:
On this preliminary basis I accept that both in Korea and in Australia, the costs for dialysis and for a transplant would be prohibitive to Mr Park.
At a later stage the case officer states that the applicant
... has stated in the latest submission of 5 July 1993 that he feels fit enough to work in Australia or that his wife, if necessary is also able to work in Australia (but this is contrary to the claim at Claim Number 7 and 8). If this is the case he must also concede that, even if he is unable to get work in Korea, his wife should be able to do so in a boom economy such as Korea's. Either way, he and/or his wife will be able to find employment in Korea and thus there is a very real prospect, and in all probability greater chance than in Australia of finding employment in Korea. Hence there is a distinct possibility that they will be able to support themselves in Korea, together with the support of her family and therefore a likelihood that they will be self-supporting and pay for medical expenses. I do not consider that it is likely that Mr Park will die if he returns to Korea.
The November reasons, after noting formal details and the administrative history of the application, summarises the claims submitted by the applicant. These included the following:
Mr Park has no siblings and his parents are deceased. He therefore has little family support in Korea. The length of time he has now spent in Australia also means that he has lost contact with other support networks, including those related to financial support.
(10)In Korea, no individual patient can afford to have a haemodialysis machine at home. This means treatment at a hospital. In his case this means 3 days a week, and 4 to 5 hours each day at the hospital. Given the large number of persons in Korea seeking work, it would be very difficult for a sick patient like him to get employment. The applicant has little money and so the cost comparison by the decision maker is very unfair.
(18)Wishes to draw attention to his children's circumstances. They are six and thirteen years old. Having lived in Australia for 4 years, they have spent their formative years here. As a result, Korean language, society, tradition and cultures have become very foreign and strange to them. If they have to leave Australia, it virtually
means that they will have to leave their home country.
After reference to the statute and the policy guidelines the decision-maker discusses the applicant's claims. The discussion includes the following:
I concluded that Mr Park would have access to health care free of charge for at least six months if he were to return to Korea and that demand for kidney transplants exceeds supply in both Korea and Australia. From the information available I considered that the situation in both countries was similar and therefore that strong compassionate grounds for the grant of an entry permit to Mr Park did not exist.
The decision-maker discusses the availability of renal transplants and dialysis in Australia and Korea and finds that both forms of treatment are available in each country and are comparable in terms of technical competence.
The decision-maker then says:
Mr Park claims that his family have adapted to the Australian way of life. I noted that Mr Park arrived on 14 November 1987 and that his family joined him on 8 December 1988. Mr Park has been living in Australia for 6 years and Mrs Park and children for 5 years.
Mr Park, Mrs Park and their two children have close family living in Korea and no close family living in Australia. The family overcame obstacles of language and culture in Australia where they have no close relatives to provide support. Being young, I would expect the children to quickly adjust to Korean language and culture. Mrs Park has close relatives (parents and siblings) in Korea and there was no evidence to suggest that Mrs Park's family would not provide support (emotional, physical or financial) to the family were they to return to Korea.
The decision-maker's summary includes the following:
The legislation requires an assessment on strong compassionate and humanitarian grounds for the grant of an entry permit to Mr Park. To do this, I analysed the difference in Australia and Korea in relation to hospital and medical services relating to Mr Park's condition.
In the main, Mr Park's compassionate circumstances relate to his own medical condition and his condition is related
to the medical and health services available in Australia and Korea. I concluded that there were no compassionate circumstances resulting from the difference in medical and health services between Australia and Korea.
In summary, I did not accept that Mr Park's claims warranted approval on strong compassionate grounds. I therefore concluded that the applicant failed to meet the legal and policy requirements under section 6A(1)(e) of the Act.
Conclusion
On the material before the decision-maker it was not in dispute that the applicant suffered from a condition which in the absence of expensive and sophisticated medical treatment would result in his immediate death. That treatment must be either a kidney transplant coupled with ongoing care, or haemodialysis.
If the refusal of a residence status and the consequent return of the applicant to Korea would be likely to deprive him of both alternatives, the existence of strong compassionate or humanitarian grounds for the grant of residence in Australia seems beyond argument.
The findings of the decision-maker as to the existence and competence of the relevant treatment in Korea was plainly open notwithstanding some dispute on the available materials. But the critical question remained whether the applicant could in fact avail himself of that treatment in Korea.
The most authoritative source of information available to the decision-maker as to the relevant conditions in Korea was the Australian Embassy in Seoul. The Embassy's cable of 13 May 1993 confirmed essentially what the applicant had claimed, viz (i) that the public health system in Korea only allows seven months treatment in hospital after which no financial assistance is provided; and (ii) that the need for the applicant to spend lengthy periods on dialysis made it very unlikely that he could find work.
The decision-maker seems to have ignored that information and reached a conclusion that the applicant could work in Korea or, if he could not, would nevertheless have sufficient financial support for his treatment. The basis for these findings appear to be the status of Korea as an "Asian tiger", and the conclusions that the applicant feels fit enough to work in Australia and hence can work in Korea, that his wife will be able to work in Korea, and that his wife's family in Korea will offer financial support.
On the materials before me there seems to be no basis for this last conclusion other than, as counsel for the respondent argued, the fact that in the initial rejection decision of 17 September 1992 the applicant was "put on notice" because the "family support issue was raised". On turning to the decision of 17 September 1992 the only relevant passage appears to be the bald assertion of the Department that the applicant "has some family support in Korea". I do not know the basis for that statement. On its face it appears vague to the point of being meaningless. It does not begin to address the practical issue of how the wife's family could provide the necessary support for the applicant's treatment in Korea. In the detailed request for further information as to matters "which may possibly be adverse to Mr Park's case" made to the applicant's solicitor on 21 May 1993, no mention is made of this issue.
As to the capacity to work of the applicant's wife, the only suggested basis seems to be what was said by the applicant's solicitors in their letter of 5 July 1993 as to her possibly being able to work, this being in response to the allegation in effect that the applicant was a drain on the Australian taxpayer.
Korea's being an "Asian tiger" is not likely to be any consolation to the applicant. Insofar as that sobriquet is relied on as showing he will, or even might, obtain work in Korea, it provides no rational basis for a conclusion which is contradictory to the Embassy's advice.
I have come to the conclusion that the decision complained of was so unreasonable that no reasonable decision-maker could have made it: s 5(1)(e) and (2)(g) AD(JR) Act. The reasoning process shows a mishandling of the material relevant to the critical question of the applicant's capacity to work or obtain financial support in Korea. Specific independent evidence highly supportive of the applicant's case has been ignored in favour of irrelevant generalisations and suppositions based on little or no evidence. There has been a failure "to give adequate weight to a relevant factor of great importance": Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 of 41.
Further, the reasoning does not deal with the aspect of risk. It may be that if the applicant is returned to Korea he will, by some means not adequately explained on the material presently available, obtain the necessary treatment. But at the very least there is a significant degree of risk that will not happen and that he will die. Before the advent of kidney transplants and haemodialysis presumably people died of kidney failure. On the evidence the same result may well follow in Korea if the patient cannot afford treatment. That is a prospect the applicant is not facing while he remains in Australia. In the context of a decision as to whether or not the applicant had shown "strong compassionate or humanitarian grounds", the decision-maker could not reasonably treat the matter as a question of whether on the balance of probabilities the applicant was likely to die if he returned to Korea. On any reasonable view of the material there was a significant risk or real chance of this occurring: cf Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389. Of course that case dealt with a different statutory provision, but a decision-maker considering the plight of a person in the applicant's position, which it is conceded excited sympathy or compassion and accordingly demonstrated "compassionate or humanitarian grounds", should have taken the significant risk of death as a matter relevant to a claim that these grounds were "strong".
The decision will be set aside and the applicant's application remitted for reconsideration by another delegate of the respondent. There will be an order that the respondent pay the applicant's costs including reserved costs.
I certify that this and the preceding fourteen (14) pages are a true copy of the reasons for judgment of his Honour Justice Heerey.
Dated:
Associate
Appearances
Counsel for the applicant: Mr P Rose
Solicitor for the applicant: Erskine Rodan & Associates
Counsel for the respondent: Mr S McLeish
Solicitor for the respondent: Australian Government Solicitor
Date of hearing: 5 and 6 February 1996
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