XY (litigation guardian) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 1076
Federal Circuit and Family Court of Australia
(DIVISION 2)
XY (litigation guardian) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 1076
File number(s): SYG 106 of 2021 Judgment of: JUDGE STREET Date of judgment: 20 December 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Protection Subclass 866 Visa – where the first applicant is a member of a particular social group – where the first applicant raised complex health needs and need for a support person––whether there was a substantial and clearly articulated claim that was not addressed by the Tribunal – prerogative relief granted – costs Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa) Cases cited: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of hearing: 20 December 2022 Place: Sydney Counsel for the Applicants: Mr R Chia Solicitor for the Applicants: Alfaro Law Counsel for the First Respondent: Mr T Riley Solicitor for the First Respondent: Australian Government Solicitor ORDERS
SYG 106 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: XY AS LITIGATION GUARDIAN FOR AEK21
First Applicant
AEK21
Second ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE STREET
DATE OF ORDER:
20 DECEMBER 2022
THE COURT ORDERS THAT:
1.Leave is granted to the applicant to file the third amended application, dated 2 December 2022.
2.A writ of certiorari is issued calling up the record of the second respondent and quashing the decision made on 28 October 2019.
3.A writ of mandamus is issued requiring the second respondent to determine the application for a protection visa according to law.
4.The first respondent pay the costs of the applicant fixed in the amount of $15,000.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
introduction
These proceedings were commenced on 19 January 2021 and sought a Constitutional writ in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 28 October 2019, which affirmed the decision of a delegate of the first respondent (“the delegate”) not to grant the first applicant a Protection Subclass 866 Visa (“the Visa”).
The first applicant was found to be a citizen of Portugal, and his claims were assessed against that country. On 27 May 2021 a litigation guardian was for the first applicant and the litigation guardian was ordered to be described as the second applicant. There was an extension of time in relation to the application as a result of orders made by this Court on 8 November 2021. There had been a number of earlier haring dates for the extension of time vacated at the parties request and then in the course of the attempts by the Court to bring the matter on for final hearing a second order, albeit superfluous was made extending time on 11 March 2022. On 19 October 2022 the matter was fixed for final hearing on 25 November 2022. On 25 November 2022 the final hearing date was re-fixed for 20 December 2022. These are the settled reasons of the oral published reasons delivered on 20 December 2022.
the grounds
The third further amended application filed on 2 December 2022 raised grounds 6 and 10 as follows:
6. Failure to Properly Consider the Applicant's claim.
PARTICULARS
(i) His Mental Health Disability;
(ii)That fact that such disabilities were deteriorating and becoming debilitating
(iii)His Health Disabilities;
(iv)That he required at the hands of the State before any actual removal treatment and the effects of that treatment on his mental health and physical health;
(v)The fact he requires a tutor/guardian/carer;
(vi)His complex health and mental health issues/needs combined;
(vii)His mental health/physical health medication needs;
(viii)His advancing age;
(ix)His inability to work by reason of all his circumstances;
(x)His inability to find gainful employment;
(xi)That he had no real remaining family in the receiving country that could in fact care for him and act for him;
(xii)That in so far as some family member existed that due to religious reasons he felt he could not turn to them or in fact could not turn to them;
(xiii)That he had the close emotional and caring support of his immediate family in Australia;
(xiv)That in fact Australia was his home for the past 44 plus years and he identified with being Australian not Portuguese;
(xv)The finding "once removed from Australia he would be vulnerable to poverty" thereby requiring a proper consideration of matters noted above in light of this finding, was not undertaken;
(xvi)His close family ties and support in Australia which amount to his advocate/carer;
(xvii)His complex health and mental health status;
(xviii)His inability to live independently and the need for a financial and social carer/advocate and the complete unavailability of such in the Receiving State;
(xix)His deteriorating complex health/mental health care needs in addition to and complicating his homosexuality and HIV/AIDS status;
(xx)A complete failure to assess the unlikelihood at his age, and given his mental health and other disabilities, he could in fact learn the language at a level such he could address his needs as they existed and their detreating effect in circumstance, that he stated that his level of understanding of the language that no doubt had evolved over the past 44 years that Ile had been away, in circumstance he informed the decision makers that his ability to speak was limited to ordering coffee and a cake and say hello and goodbye, a level of dialect only understandable in Maria if in fact still existed and not otherwise have become extinct.
All these matters being relevant considerations to the applicant's application, raised in the evidence before the decision makers, including. that given his disabilities as outlined above, once removed from Australia, he would be vulnerable to poverty in Portugal, he would not being able to find gainful employment, having no real access to family and support network (a guardian), would subject the applicant to cruel or inhuman treatment or degrading treatment, and his life span would be substantial curtailed, once in the receiving state given he is a disabled person.
10.A complete failure to address on the Application, the Applicant's claim of complex mental health disabilities, his disabled status, requiring a guardian/carer, such as to assess if in fact the Applicant will not be subjected to significant harm once removed from Australia and cruel or inhuman treatment and degrading treatment if removed from Australia to Portugal.
THE FIRST APPLICANT’S CLAIMS
In his application for the Visa signed on 27 March 2019 with a received stamp of 5 April 2019, the first applicant identified that he had migrated to Australia with his parents and had lived his whole life in Australia. In relation to his fears, the application at paragraph 77 identified:
Due to my HIV positive status, I will suffer hardship and discrimination. I do not read and write Portuguese and have limited speaking skills. I will not be able to work and, therefore, will not be able to access treatment in Portugal. I will require treatment my whole life. I rely on reports of my HIV team, Associate Professor Brown and Alice Gibian, social worker.
The application identified as documents in paragraph 84 of the application the medical report of Associate Professor Brown and a report of the HIV Outreach case worker and local court document.
The delegate identified the first applicant’s claims as follows:
The applicant’s claims for protection, including those raised at interview, and evidence provided by the applicant in support of his claims, are contained in BCC2019/1699656. The applicant’s claims for protection are summarised below:
•The applicant migrated to Australia with his parents at the age of 10. He has lived in Australia since that time.
•The applicant claims that he will suffer from hardship and discrimination in Portugal because of his HIV positive status and because of his limited Portuguese language skills.
•He will be unable to work and therefore unable to access treatment.
•The applicant relies on the reports from his HIV team, treating professor and social worker.
•The applicant believes that free treatment is only available to citizens or permanent residents in Portugal who have worked and paid taxes.
•He requires medication, counselling and family support and he is afraid he will die alone.
In a letter from the applicant’s Migration Agent dated 29/03/2019, it is claimed that:
•The applicant is a member of a particular social group, ie. people living with HIV who will suffer persecution because of the positive status.
•His life will be at risk due to his need for lifelong treatment, his limited means, his inability to work, his lack of support in Portugal and his inability to communicate in Portuguese.
•The applicant will be homeless and forced to live in poverty.
The applicant provided the following documents in support of his application:
•Advice of court result dated 19/07/2017
•Criminal history report/sentence summary
•2 letters from Illawarra Shoalhaven Local Health District regarding applicant’s HIV positive status and treatment
•Letters of support from applicant’s mother, two sisters and a Portuguese community member
•Letters of support from applicant’s neighbours, an additional Portuguese community member, multiple family friends and the applicant’s third sister
•Judge’s sentencing remarks in the matter of R v [AEK21], dated 25/06/2018
•Applicant’s superannuation statement, dated 30/06/2018, Westpac bank statement, dated 25/07/2018-25/01/2019 and letter requesting Ministerial Intervention under s195A(2)
The report of Associate Professor Katherine Brown dated 22 March 2019 relevantly identified that the first applicant was diagnosed with HIV and will require treatment for the rest of his life. The report opined that treatment is accessible in Portugal if he is a citizen. The report identified that the first applicant is vague and has limited education. The report identifies that the first applicant lives with and has the support of his mother. The report identifies the first applicant has been unemployed since he became unwell and has not found other work, has not for 44 years lived in or returned to Portugal, cannot speak enough Portuguese to understand medical treatment, would need an interpreter for any medical intervention, that he has had family support during his HIV treatment journey, that his lifespan would be limited if left to fend for himself without family support.
The report by the senior social worker Alice Gibian dated 28 March 2019 identified that the HIV outreach team had worked with the first applicant and his family since 2 October 2017. The report identified the HIV/ AIDS diagnosis and substantial physical deconditioning, that family provided all practical care at home during illness, the referral for community case management around complex health and social needs, memory and planning difficulty, risk factors for impairment affecting the brain and childhood learning difficulties, inability to undertake neuropsychological assessment, learning difficulties, daily support from family, need for HIV treatment and support in English, eligibility for government based medial care and income support is unclear, needs additional professional support to manage his health due to complex history, likely to have difficulty organising his own care independently, need for counselling, need for support from family, family help with daily antiviral medication and medical attendance, fear of stigmatising because of sexuality and HIV status, would be reluctant to access HIV supports, would have difficulty effectively negotiating unfamiliar health/social services and requires help to maintain care.
The local court documents with a received stamp of 5 April 2019 include a Check Results Report with a result column which refers to the need for participation in drug and alcohol rehabilitation, participation in mental health assessment and treatment as well as counselling.
The Court will return to the claims that arise on the evidentiary material shortly. The delegate on 18 July 2019 found that the first applicant did not meet the criteria for the grant of the Visa. The first applicant applied for review to the Tribunal.
In addition to the Court Book which was marked Exhibit A and the Supplementary Court Book that was marked Exhibit B, the Court admitted into evidence, the post tribunal affidavit material including material concerning the appointment of the litigation guardian relied upon by the first applicant limited however to the issue of materiality only.
before the tribunal
The Tribunal identified part of the content of the first applicant’s Visa application as to being HIV positive and would suffer hardship and discrimination as well as limited Portuguese skills. The Tribunal set out a quote from the first applicant’s adviser and a large quote from a submission. The tribunal identified the evidence as to being lost with his illness and being away from family, and his limited education. The Tribunal raised with the first applicant a view that his daily HIV treatment of Triumeq would be accessible and cost nothing. The Tribunal raised access to unemployment benefits. The Tribunal identified by quote a long submission received on behalf of the first applicant. The Tribunal identified country information concerning social security, HIV healthcare, access to Triumeq through the National Health service, cost of antiretroviral and cost of the National Health Service, and treatment of homosexuals as well as those with HIV.
The Tribunal identified the criteria for the grant of the Visa and the mandatory considerations, and then referred to a summarised assertion of the issue in the present case, being whether the first applicant had a well-founded fear of persecution for one or more of the five refugee reasons in Portugal, and if not, whether there were substantial grounds for believing that, as a foreseeable consequence of his being removed to Portugal, there is a real risk that he will suffer significant harm.
The Tribunal referred to the first applicant’s claim in relation to homosexuality and living with HIV as constituting a social group. The Tribunal made a finding in relation to the first applicant being a homosexual and accepted that he is HIV positive and that he has been receiving treatment for this in Australia. The Tribunal found that the first applicant was a member of a particular social group comprised of homosexuals and homosexuals with HIV, or people living with HIV.
The Tribunal then made reference to the first applicant fearing return to Portugal because of his need for lifelong treatment and his limited means and inability to work. The need for lifelong treatment does not distinguish between the need for treatment in relation to the daily HIV treatment and the other treatment or support that the first applicant required by reason of his mental health. The Tribunal referred to the claim concerning stigma in a predominantly Catholic country, as well as the concern in respect of ability to access medical and community services.
There was a reference to the most recent submission, suggesting that the first applicant will suffer serious mental and physical pain if he is removed from Australia and that he would suffer significant economic and mental hardship arising from his denial of capacity to earn a livelihood and a denial of emotional support of Australian family.
Paragraph 44 of the Tribunal’s reasons on a fair reading comes close to identifying the mental health claim and the need for support, which clearly arose on the material before the Tribunal.
The Tribunal referred to the first applicant’s previous work history and did not accept that he will be unable to produce identity documents to allow him to obtain evidence of Portuguese resident status, or that he is so incapable that he would be unable to cope with these administrative procedures.
The evidentiary basis for that finding of ability to cope given his complex medical issues, limited Portuguese skills and identified need, by Associate Professor Brown and Alice Gibian for a support person was not explained by the Tribunal. The adviser, referred to in paragraph 4 of the Tribunal’s reasons referred to the fact that the first applicant has no support in Portugal. The submission set out in paragraph 5 of the Tribunal’s reasons referred to the first applicant’s inability to access medical and community services, that he will be unable to access social support, that he does not have adequate means of supporting himself and that he is unlikely to be able to access medical resources. The quote set out by the Tribunal in paragraph 16 referred to denial of emotional support threatening the first applicant’s capacity to subsist and question of accessibility of health care and social support services to the first applicant as well as his dependence on third parties to interpret and complete forms.
The Tribunal referred to the claim in respect of capacity to subsist, and referred to country information suggesting that unemployment social benefits are available to beneficiaries who reside in Portugal and who are not entitled to unemployment benefits. The Tribunal accepted that the first applicant may not be entitled to this benefit because he must meet the minimum qualification period requirement of 180 days of paid employment in the 12 calendar months immediately prior to the date of unemployment. The Tribunal correctly identified that was something that the first applicant cannot do. The Tribunal accepted that this requirement may prevent the first applicant from being eligible for social security. The Tribunal made reference to that not being for a refugee reason. The Tribunal also identified that it accepted that the first applicant’s age, skills and lack of past employment would be a barrier to employment, but the Tribunal said that this would not be for a refugee reason.
The Tribunal referred to the access to healthcare and did not accept that the first applicant would be required to pay for his healthcare. The Tribunal did not accept that, because of stigma or a resourcing issue or because of any other issue, the first applicant would be unable to access medical services or face serious harm as a result.
The Tribunal’s reasons do not evidentiary analysis of the material from the first applicant as to the need for a support person to access medial services.
The Tribunal made reference to accepting that there may be some discrimination in the more traditional conservative country areas in Portugal, and that the country information suggests there is still a stigma for those living with HIV. However, the Tribunal referred to the country information not supporting a conclusion that the level of discrimination that homosexuals and that those living with HIV may face means that there is a real chance the first applicant will face serious harm as defined.
The Tribunal found that the first applicant being identified as an Australian did not change any of its conclusions. The Tribunal accepted that it would be difficult for the applicant because he speaks only a little of the Portuguese language and does not know the country. The Tribunal accepted that the first applicant will suffer pain if he is removed from Australia but did not accept, singularly or cumulatively, that he has a well-founded fear of persecution. The Tribunal was not satisfied that the first applicant met the criteria under s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”).
The Tribunal turned to complementary protection and found that the first applicant did not meet the criteria under s 36(2)(aa) of the Act.
submissions of the applicantS
Mr Chia, in the submissions dated 28 October 2022, carefully identified the first applicant’s background and set out in full the paragraph to which the Court has referred in the Visa application. The written supplementary submissions were expressed as being made in addition to the Applicant’s written Submissions dated 28 October 2022.
The submissions addressed the relevant law in relation to the failure to consider a claim:
33.In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (WAEE) [2003] FCFAFC 184; (2003) 236 FCR 593 (French, Sackville and Hely JJ) at [47] the Full Court of the Federal Court held that the then Refugee Review Tribunal had failed to consider a claim made by the visa applicant, notwithstanding the fact that the tribunal referred to the “issue” in it’s overview of the visa applicant’s claims:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
…
35.The Full Court of the Federal Court has also said that “considering” a claim requires “proper, genuine and realistic consideration” being given to the claim. In Khan vMinister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 at [25], his Honour Justice Gummow said:
[W]hat was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy ... The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense ...
Mr Chia submitted that the Tribunal had failed to deal with the claim that the first applicant is at risk of harm due to the combination of his HIV positive status, lack of means and lack of support from his family and failed to deal with the first applicant’s depression and deteriorating mental condition, and how he would be treated with the same in Portugal.
Mr Chia advanced further written submissions which clearly identified, in support of grounds 6 and 10 of the third amended application, that there was a claim that the first applicant would not be able to access treatment in Portugal, that he had ongoing needs for medication and counselling and required the support of family, and made reference to the report of the social worker.
In that regard, the report of that social worker, dated 28 March 2019, squarely identified at the outset that the first applicant had significant health and psychological needs. That report also identified, under the heading “Cognition”, an assessment indicating memory and planning difficulty, poor insight into decisions, risk factors for impairment included late HIV diagnosis with high viral load affecting the brain and childhood learning difficulties, and that a specialist HIV neuropsychological assessment was not completed due to his recurrent incarceration. In relation to the need for future care, under a heading “Care Coordination Case Management”, there is a statement:
…needs additional professional support to manage his healthcare due to complex history above. He is likely to have difficulty organising his own care independently.
There was reference also to the need for support from family for a person living with HIV, and that the first applicant had lived previously with his mother and received extended family help. In relation to health, there was a reference to the first applicant’s sisters, help with his daily antiviral medication and attendance at regular medical appointments. There was further reference to the first applicant being reluctant to access HIV supports in a foreign country.
The report by Associate Professor Katherine Brown, dated 22 March 2019, identified that the first applicant will require treatment for the rest of his life and made reference to treatment being available if he was a citizen of a country. Reference was made to the first applicant’s vague and limited education, and an express opinion was provided that it is likely that his lifespan would be limited if left to fend for himself in a country with no family to look out for him.
Mr Chia submitted that the Tribunal failed to deal with the claim that the firstapplicant was at risk of harm due to the combination of HIV positive status, lack of means and support from his family. It was submitted that the Tribunal also failed to deal with the first applicant’s depression, deteriorating mental condition and age factors as additionally relevant as to how he would be treated on return to Portugal.
In relation to medication, it was also submitted that the Tribunal, albeit identifying that Triumeq is available in Portugal, did not identify that the first applicant could specifically access that Triumeq through the Portuguese National Health Service, and that the Tribunal stopped short of finding only that all residents of Portugal had access to the health system and patients with HIV had antivirals fully covered by the NHS. The Tribunal did not make a finding that Triumeq specifically would be available to the first applicant through the Portuguese NHS. It was submitted that the Tribunal failed to deal with or give proper, genuine and realistic considerations to the first applicant’s claims based on his need for ongoing medication.
submissions of the first respondent
The first respondent relied upon the submissions filed on 3 March 2022, as well as on 11 November 2022 and 13 December 2022. In response to the Court raising concerns about the failure to identify the particular claims raised by the first applicant, Mr Riley maintained that the Tribunal had correctly identified the relevant claims and had made findings dispositive of those claims and, in particular, relied upon paragraph 51 of the Tribunal’s reasons as being dispositive of the mental health claim advanced by the first applicant.
Paragraph 16 of the Tribunal’s reasons set out a large slab of submissions. Sub-paragraph 4 of that slab, as correctly identified by Mr Riley, makes reference to the first applicant stating that he believes he will suffer serious mental and physical pain if he was removed from his homeland, Australia, where he has resided for 44 years. Mr Riley submitted on a fair reading that the reference to pain in paragraph 51 of the Tribunal’s reasons should be read as mental pain.
The Tribunal’s reasons as to suffering pain were identified by Mr Riley as supporting a finding that the Tribunal had addressed the issue of mental health and emotional suffering. Mr Riley submitted that the only claim for treatment made by the first applicant had been the treatment referable to being HIV positive. It was submitted that the circumstances in which the first applicant would find himself in Portugal were not ones critically for a refugee nexus reason.
Mr Riley maintained that there was no failure by the Tribunal to address a substantial andclearly articulated argument, referring to Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [27].
In his submissions dated 12 December 2022, Mr Riley maintained that there was no failure to deal with a substantially, clearly articulated claim. It was contended that the first applicant did not claim to have complex mental health difficulties. It was submitted that the assertion of a claim, in combination with the first applicant’s status and lack of family support and depression or pain he would suffer, was not a Convention reason or an intentionally inflicted significant harm, and that no combination of these factors could affect the reasoning.
It was acknowledged that the first applicant’s circumstances were unfortunate and that he may be vulnerable to poverty, but that this did not involve him being persecuted in Portugal for a Convention reason or being the subject of intentionally inflicted significant harm in Portugal, as required to satisfy the Visa criteria.
The first respondent’s submissions also sought to address the criticism in relation to Triumeq being able to be accessed, and made reference to the generalised finding by the Tribunal in respect of antivirals being free of charge in Portugal. It was submitted that the Tribunal did not have to specifically note that Triumeq was such a drug. There was no reference to any country material in Mr Riley’s submission that Triumeq was such a drug, and this was a drug that the first applicant was taking daily.
It was submitted that relief should be refused because of the lack of a Convention nexus or intentionally inflicted significant harm, and reference was made, again, to SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29], [88] and [91].
findings
The difficulty that Mr Riley’s submissions face was identified at the outset by the Court with Mr Riley, in that the Tribunal did not clearly identify the first applicant’s claims to fear harm under the Convention and in respect of complementary protection. In relation to analysing whether or not the claim squarely arose on the material, it was not just the content of the first applicant’s application and the two reports to which the first applicant had expressly referred and incorporated in his express reasons but also understanding the gist of the submissions that were set out by the Tribunal. The need for a support person in Portugal for the first applicant to access necessary medical treatment was not the subject of proper intellectual engagement by the Tribunal.
In its reasons, the Tribunal in paragraph 3 did not accurately summarise the content of the first applicant’s fears in the application for the Visa. The paragraph left out the reference to treatment for the whole of the first applicant’s life, the paragraph left out that he would not be able to work or to access treatment and the paragraph left out the cross-referred material being the report by the social worker, and report by the associate professor.
The Tribunal’s reasons, rather than identifying, as is normal practice, an upfront summary of the claims articulated by the first applicant, set out slabs of the content of what was being advanced by the first applicant in paragraphs 4, 5 and 16 of its reasons, It is sound practice to summarise the claimed fears of harm being articulated by an applicant under the Refugee Convention and in relation to complementary protection. Firstly so as to ensure that the Tribunal correctly identifies in its reasons the claims that are expressed or that squarely arise on the material before it. Secondly so as to be able to weight and analyse the evidentiary material in support of each claim. Thirdly so that the Tribunal is in a position to make findings based on the evidence in respect of the whole of those claims. Fourthly so that a Court with power to review, in this case for jurisdictional error, can be satisfied that the Tribunal has discharged its statutory obligations in the conduct of the review. The Tribunal’s reasons must of course be read as a whole and without a keen eye for error.
A fair reading of the Visa application and directly relied upon supporting material identifies a claim to fear harm by the first applicant for want of family or a support person. The need for a support person was a substantial and clearly articulated claim that arose on the material before the Tribunal. The Court finds that this aspect of the particulars in Ground 6 is supported by the reference to the application and supporting material on a fair reading raising the following arguments:
·hardship and discrimination due to not being able to read or write Portuguese and limited reading skills, limited education, is vague, has learning difficulties and requires daily support;
·hardship and discrimination because he could not understand medical treatment and would need an interpreter and support person and needs professional support to manage his health;
·he will not be able to access treatment;
·he will require treatment his whole life;
·would be reluctant and have difficulty accessing HIV support, health and social services;
·has complex health and social needs;
·requires help to maintain his health care;
·needs mental health care and counselling;
·that his lifespan would be reduced without a support person.
It is apparent from the Tribunal’s reasons in paragraphs 43, 44 and headings/sub-headings that the Tribunal identified that the fist applicant feared harm because was HIV positive, because homosexual, because he is a member of a social group being homosexual and homosexual with HIV and people living with HIV and because of his need for lifelong HIV treatment, need to access Triumeq, limited means, persecution by way of stigma in a predominately Catholic county, inability to work and inability to access medical and community services. The Tribunal also referred to the submission that the first applicant will suffer serious mental and physical pain in removed from Australia, will suffer significant economic and mental hardship arising from a denial of a capacity to earn a livelihood and denial of emotional support of Australian family.
The reference to mental pain and mental hardship are not on a fair reading a reference to the first applicant’s mental health needs. The reference to emotional support does not on a fair reading identify the need for support to access medical treatment.
The Tribunal also identified, in paragraph 4 of its reasons, the submission that referred to the need for lifelong treatment and that the first applicant would be homeless and live in poverty if he were not allowed to remain in Australia.
In paragraph 5 of the Tribunal’s reasons, the slab of submissions does not identify an analysis of what that reflects in terms of claims, albeit that there is again a reference to requiring lifelong treatment without further analysis of what that treatment might be and a different reference to HIV treatment. Paragraph 7 of the Tribunal’s reasons identified the first applicant articulating that removal from Australia would make him really sad and would shorten his life.
The Tribunal made reference, in paragraph 8 of its reasons, to an assumption that the particular daily treatment required by the first applicant, described as Triumeq, would be available for him cost-free in Portugal. The first applicant referred to his limited recollection of Portugal and being there as a stranger and that he would feel very lost in understanding and not having family support. The reference to the absence of family support is also of significance in understanding and analysing the claims that the first applicant was articulating a need for support to access his complex health treatment needs.
The Tribunal referred to the problems that the first applicant would face in respect of unemployment social benefits, and referred to the first applicant’s concern in relation to his family background of Catholics where homosexuality and HIV were still an issue, and materially identified that the emotional distress would do a lot of damage. On a fair reading the reference to emotional distress is a reference to the first applicant’s mental health..
In paragraph 11 of its reasons, the Tribunal referred to material in relation to the proposition that there would be treatments available for the first applicant, a topic pursued also in paragraph 12 of its reasons.
The Tribunal also made reference, at paragraph 13 of its reasons, to the first applicant, observing he would feel deep loss and was struggling with feelings that he had never had, and that the feelings were getting heavier and heavier every day. On a fair reading this was a further identification of a claim in relation to the first applicant’s mental health.
The Tribunal did identify the first applicant’s concerns in relation to becoming one of the poverty statistics. The Tribunal referred to the first applicant’s fear of discrimination and the hurt that would kill him, and made a further elaboration in that regard, that the emotional side of it would kill him and that he wanted to go home and made reference to missing his family. On a fair reading these were further articulations of the first applicant suffering mental harm.
The reference in these submissions to the national healthcare system in relation to support services in the submissions on a fair reading identified the need for support beyond the HIV treatment. There was identified a concern as to the cost of the first applicant’s lifelong treatment and whether he would be deprived of proper healthcare. This reference required proper identification of the availability of the actual drug required daily by the first applicant in relation to his lifelong treatment, and in that regard, the submissions also identified that, apart from having no immediate family and nowhere to live, the first applicant had no emotional support, as well as referring to no means to pay for his food or medical treatment. The reference to no emotional support, again, supports, on a fair reading a claim to fear harm because of his mental health.
It was advanced that the first applicant would, in these circumstances, be denied the most fundamental basic right and would be destined to live in poverty and die prematurely.
The Tribunal after referring to a heading “Country Information” appears to have analysed the first applicant’s claims under the subheadings of “Social Security in Portugal”, “Healthcare – HIV”, “Triumeq”, “Access to TRIUMEQ in Portugal Through the NHS”, “Costs of Antiviral on the National Health Service”, the “Cost of the National Health Service”, “Treatment of Homosexuals in Portugal” and “Treatment of Those With HIV in Portugal”. The headings alone are insufficient to identify the clearly articulated claims that the first applicant had advanced.
The Tribunal on a fair reading did make a finding that the first applicant would be able to access medical services. However the Tribunal did not explain how the first applicant who had always had a support person would be able to access medical services. There is however an absence of evidentiary analysis as to the need for a support person to access medial services. That finding is also one that is adversely affected by the failure to properly identify the first applicant’s claims in relation to the accessing medical services without a support person.
There was other Court material such as identified in the supplementary court book, which made express reference in relation to the first applicant’s drug problems and need to participate in mental health assessment and treatment and counselling. This material was part of the information provided in support of the Visa application and on a fair reading supported an apparent need for the first applicant to have on-going mental health treatment and counselling and the need for a support person to address and access his complex health treatment needs.
The Court finds that there was a clearly articulated claim in relation to the first applicant’s mental health and need for family support or a support person to access health services. The Tribunal did not address how in the absence of a support person the first applicant could access his complex medical treatment needs. These were claims that fairly arose on the material before the Tribunal and that should have been the subject of proper reasoned findings addressing the evidence that supported these claims. There was no genuine intellectual engagement with the first applicant’s claims and evidence in respect of the first applicant’s claims to fear harm by reason of his mental health and the need for ongoing support in respect of mental health and complex medial needs. . On a fair reading the evidence before the Tribunal the first applicant feared harm without a support person to help him access his HIV treatment, mental health needs including counselling.
There was no genuine intellectual engagement or findings in respect of the first applicant’s claim to fear harm from the absence of a support person to access treatment and his mental health needs. On the lay and expert evidence before the Tribunal the family support that had clearly been assisting in him being able to receive the benefit of health treatment generally in Australia. How the first applicant would access his needs for HIV and mental health treatment including counselling was not explained. There was no genuine intellectual engagement with his need for as support person to access medical treatment and services given the combination of his claims, including mental health, and/or in relation to the likely shortening of his longevity from the poverty to which he would be subjected and the lack of treatment that the first applicant was likely to suffer, in part due to his mental health, if returned to Portugal.
The Court finds that, by reason of those failures, there was a jurisdictional error as alleged in Ground 6 in the applicant’s third amended application within particulars v, vi, vii, xi, xii, xiii, xvi, xvii, and xviii. The Court notes that the reference in particular v to tutor and guardian is irrelevant and was not before the Tribunal. However as explained the Court accepts that the need for a support person or carer was a claim raised by the first applicant that was not the subject of genuine intellectual engagement. The Court finds that the Tribunal’s failure to a genuine intellectual engagement with the whole of the first applicant’s claims deflected the Tribunal from properly performing its statutory function and the analysis required in respect of both the Convention and complementary protection.
In relation to Ground 10, it is also apparent from the Court’s findings that the Court has accepted that there was a failure by the Tribunal to deal with the need for a carer in the context of the first applicant’s mental health claim. Again the reference to guardian is irrelevant and was not a claim that fairly arose on the material. However in the context of the need for a carer or support person the alleged jurisdictional error articulated in Ground 10 is made out. The Court does not accept the first respondent’s submission advanced that the first applicant’s claims are doomed to failure for want of a Convention nexus. Further, the Court does not accept the submissions insofar as they are advanced that there would be no utility in granting relief. Affidavit evidence was read on the issue of materiality by Mr Chia that identifies further significant evidence that would be material in a reconsideration of the first applicant’s claims under the Convention or in respect of complementary protection in any review. The Court does not accept that the first applicant’s claims are doomed to failure.
The Court notes that it remained unpersuaded by the respondent’s submissions as to the actual HIV daily treatment drug Triumeq being available free to the first applicant but it is unnecessary to determine this issue in light of the above findings of jurisdictional error.
In these circumstances, the first applicant is entitled to prerogative relief.
costs
The Court notes that Mr Riley, of Counsel for the respondent, drew the Court’s attention to the scale amount in regard to costs, and identified the brevity of the hearing today. Mr Riley submitted that it was the scale amount that would be sufficient. Mr Chia, of Counsel for the first applicant, identified that his instructions revealed costs in the amount of $37,033.00.
The matter has a very long, protracted history before the Court, and it is unnecessary to identify the numerous occasions on which the matter has been before the Court. In relation to the proposition that the brevity of the matter today gives rise to a position where the scale amount should be sufficient, notwithstanding the earlier submissions, it is the skill of the respective Counsel that reflects the brevity of the hearing. It does not diminish the value of their services.
In those circumstances, the Court has no hesitation in accepting that costs well in excess of the scale amount have been incurred in the present case by the first applicant’s representatives. The Court is satisfied that, in this case, an appropriate order would be twice the amount of scale, albeit the Court accepts that further costs would have been incurred by the first applicant. Given the extension of time application and the numerous references before the Court, the Court is satisfied that the amount of $15,000.00 is both reasonable and a just order in the circumstances of this case.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 20 December 2022 and the parties were sent a sealed copy of the Court’s orders. Associate:
Dated: 7 February 2023
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