FEDERAL COURT OF AUSTRALIA

Taivei v Minister for Home Affairs [2018] FCA 1129

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Respondent made on 30 April 2018 is set aside.

2.    The matter is remitted to the Respondent for reconsideration in accordance with law.

3.    The Respondent is to pay the costs of the Applicant.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Applicant in the present proceeding, Mr Tevita Vua Taivei, is a citizen of Fiji who arrived in Australia when he was five years old. He has normally thereafter resided in Australia. Mr Taivei is also known as Mr David Gordon.

2    In May 2015, he was convicted in the District Court of New South Wales of supplying a commercial quantity of heroin. He was sentenced to a term of imprisonment of five years and three months.

3    His visa permitting him to remain in Australia – a Class BF transitional (permanent) visa – was cancelled in June 2016 under s 501(3A) of the Migration Act 1958 (Cth). A delegate of the Minister was satisfied that he did not pass the “character test” by reason of his “substantial criminal record”. A request was made in September 2016 for the Respondent Minister for Home Affairs (“Minister”) to revoke the cancellation decision pursuant to s 501CA(4) of the Act. In April 2018 the Minister decided not to revoke the cancellation decision.

4    Mr Taivei then filed in this Court an Originating Application seeking review of the Minister’s decision. Central to the resolution of that Originating Application is the consideration given by the Minister to the fact that Mr Taivei suffers from “a rare mycobacterium chimaera infection”. In very summary form, the principal contention on his behalf is that the Minister’s decision was vitiated by reason of unreasonableness or a denial of procedural fairness because of a failure to give proper consideration to “the risk of premature death to the applicant if the cancellation decision is not revoked”. Mr Taivei relies on a failure on the part of the Minister to properly consider and make findings in respect to Mr Taivei’s claims that if he is returned to Fiji, he will not be able to access adequate (or possibly any) medical care and that he will be rendered homeless and unemployed (or unemployable). It was said that Mr Taivei will be exposed to premature death as a result of these matters.

5    Both the Applicant and the Respondent Minister were represented by Counsel.

6    It is concluded that the Minister’s decision should be set aside.

Sections 501 & 501CA of the Migration Act

7    Section 501 provides in relevant part as follows:

Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

…

Decision of Minister—natural justice does not apply

…

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

…

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

Otherwise, the person passes the character test.

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

…

8    Section 501CA provides (in relevant part) as follows:

Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

The claims made

9    The challenge made to the Minister’s decision focusses upon the manner in which the Minister resolved claims made by Mr Taivei as to the consequences of non-revocation of the decision to cancel his visa. In particular, Mr Taivei claimed that the Minister failed to make findings with respect to his potential homelessness, employability, adequacy of medical care and the risk of premature death if he were to be removed from Australia. Counsel for Mr Taivei submitted that these grounds were “intertwined”, with the issue of his health as well as potential homelessness and unemployment all bearing on his “capacity to survive in Fiji”.

10    It is common ground that Mr Taivei suffers from a rare Mycobacterium chimaera infection. That infection, it would seem, was acquired during cardiac surgery performed at Prince of Wales Hospital in Sydney in 2015. There are apparently only about 100 reported cases of this infection worldwide.

11    The medical assessment that Mr Taivei requires prolonged treatment and monitoring thus featured prominently in the submissions made on his behalf to the Minister as to why the Minister should exercise the power conferred by s 501CA(4) to revoke the decision to cancel his visa.

12    One document available to the Minister was a reference provided by Associate Professor Jeffrey Post of the Department of Infectious Diseases at Prince of Wales Hospital. The Associate Professor, on 16 February 2017, expressed his opinion as follows:

I am writing as one of the specialist physicians involved in the care of Mr Gordon. He is currently an inpatient in the Intensive Care Unit at the Prince of Wales Hospital. He has disseminated Mycobacterium chimaera infection that has affected his lungs, his kidneys (with kidney failure and rupture of one kidney requiring removal of the kidney) and his bone marrow. He has been critically ill and despite the treatment provided his prognosis is not yet certain. The infection was almost certainly acquired in a hospital in Australia at the time that he underwent cardiac surgery to replace one of his heart valves. He probably has prosthetic valve (artificial heart valve) endocarditis (infection of the heart valve). Additional information about the condition is available on the NSW Health website. I would request that you provide any and all possible assistance to Mr Gordon and his family at this difficult time. If you require additional information please contact me via the Prince of Wales Hospital.

13    A Consultant Physician also of the Department of Infectious Diseases at Prince of Wales Hospital, Dr Kate Clezy, wrote as follows in April 2017:

Mr David Gordon has been a patient of the Prince of Wales Hospital since January 2017 where he had a prolonged admission for the management of Mycobacterium chimaera disseminated infection. This infection was a complication of cardiac surgery that was performed at the Prince of Wales Hospital in 2015. As part of the management of this infection he has had his cardiac valve replaced in February 2017, and he will require life-long antibiotics.

As there are only about 100 cases (reported) of this infection worldwide, the most appropriate treatment remains uncertain, however very prolonged therapy is recommended. This needs to be with a combination of anti-mycobacterial medications which require regular monitoring with blood tests as well as regular follow up visits with specialists including Infectious Diseases, Ophthalmology and Cardiology. He is currently attending these as an outpatient for an indefinite period of time. His current medications include rifabutin, ethambutol, clarithromycin and entecavir as well as a number of others.

For David to get the best possible health outcome, these medications must always be available and he needs access to immediate specialist health care if his health deteriorates.

The same Consultant Physician provided further information in June 2017.

14    An Interventional Cardiologist at Price of Wales Hospital, Dr Sze-Yuan Ooi, also wrote in November 2017:

Mr David Gordon is currently admitted to the Prince of Wales Hospital under my care. He has had a recurrent Mycobacterium chimaera prosthetic aortic valve infection despite ongoing oral antibiotic therapy over the last nine months. His infection was complicated by significant periprosthetic regurgitation and an aortic root abscess requiring a third aortic valve replacement with extensive excision of the surrounding cardiac and aortic tissues. His permanent pacemaker system was removed in the same procedure.

Mr Gordon faces an uncertain future principally due to the persistent nature of this organism. He will require long-term antibiotic therapy and ongoing review by the Infectious Diseases and Cardiology teams. This will require frequent visits and a high level of medical expertise. Provision of this level of care will be of the utmost importance in providing Mr Gordon with the best opportunity for a favourable outcome in the context of what is a complicated medical problem with a high risk of morbidity and mortality.

15    There was no contrary medical opinions available to the Minister when he made his decision in April 2018. The evidence as to Mr Taivei’s medical condition, it was common ground, was “all one way”.

The Minister’s reasoning process

16    Section 501G(1)(e) of the Migration Act relevantly provides that the Minister is required to give a person whose visa has been cancelled under s 501CA a written notice that “sets out the reasons … for the decision”. Section 25D of the Acts Interpretation Act 1901 (Cth) requires (inter alia) that such a statement of reasons “shall also set out the findings on material questions of fact”. What is required in order to comply with these provisions is not a statement of findings of fact which a reviewing Court may consider material but rather the findings of fact which the decision-maker considered material: cf. Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [69], (2001) 206 CLR 323 at 346 per McHugh, Gummow and Hayne JJ (“Yusuf”). The absence of an express finding of fact in a statement of reasons may permit an inference that it was not considered by the decision-maker to be “material” to the ultimate decision.

17    The Statement of Reasons provided by the Minister in the present case starts with a statement that the representations made by Mr Taivei had been considered. The Statement then provides in part as follows:

10.    As I am not satisfied that Mr TAIVEI passes the character test, I have considered, in light of Mr TAIVEI’s representations, whether I am satisfied that there is another reason why the original mandatory visa cancellation decision should be revoked.

11.    In undertaking this task, I assessed all of the information set out in the attachments. In particular, I considered Mr TAIVEI’s representations and the documents he has submitted in support of his representations regarding why the original decision should be revoked.

12.    In the representations/documents submitted by or on his behalf, Mr TAIVEI has articulated reasons why the original decision should be revoked, which include: the best interests of his minor son and four nieces; his strong family ties to Australia and the impact of his removal on family members, including his partner; his lengthy residence in Australia from the age of five; his serious health conditions; his contributions to the community; his rehabilitation, offer of employment and plans for the future; the expectations of the community; the need in Australia for his employment skills; and the hardship he will experience if he is returned to Fiji, including concerns about management of his health problems and premature death.

18    More immediately relevant to the principal contention advanced on behalf of Mr Taivei, namely the consideration given by the Minister to the effect upon his medical condition should he be removed to Fiji, the Statement continues on as follows (without alteration):

Extent of impediments if removed

45.    In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the impediments that Mr TAIVEI will face if removed from Australia to his home country of Fiji in establishing himself and maintaining basic living standards.

46.    Mr TAIVEI suffers from heart problems and in 2015 had surgery to fit a pacemaker and a mechanical aortic valve. He also takes anti-clotting and blood pressure medication.

47.    In his initial representations, Mr TAIVEI advised that his main concern about removal to Fiji is the availability of work. He advised that work is scarce in Fiji and he will need an income in order to obtain his medication. He submitted that he will only be able to get the medical treatment he needs in Fiji if he has the money to pay for it.

48.    I note that Mr TAIVEI has no family in Fiji, nowhere to live, no employment and no means of support. He has also advised that return to Fiji will be difficult for him because it will mean the loss of his family in Australia. He was last in Fiji in 1985, does not speak Fijian, and will be regarded as an outsider because he was not raised in that country. I note that English is an official language of Fiji.

49.    I note that in December 2016, Mr TAIVEI became critically ill with a rare mycobacterium chimaera infection as a result of open his heart surgery in 2015. The infection affected his heart, lungs, bone marrow, eyes, hearing and kidneys, causing one kidney to fail and rupture, necessitating its removal. A medical report dated 16 February 2017 indicates that he probably also has an infection of the artificial heart valve. I note that his previously inserted artificial aorta valve and pacemaker have also been replaced.

…

51.    A letter from Dr Kate Clezy, Consultant Physician in infectious diseases, indicates that Mr TAIVEI requires life-long antibiotics. As the condition is rare, treatment remains uncertain, however ‘very prolonged therapy is recommended’, with regular monitoring by specialists including Infectious Diseases, Ophthalmology and Cardiology. His medications include rifabutin, ethambutol, clarithromycin, entecavir and others.

19    The Minister’s reasons thereafter set forth details of information about Mr Taivei and further information about his health condition and continue as follows (without alteration):

55.    I note that Mr Matherson submits that the medical assessments obtained by the Department support the contention that removal to Fiji will be extremely detrimental to Mr TAIVEI’s health and well-being. Mr Matherson states that Mr TAIVEI’s antibiotics will not end on 31 August 2017, as the letter from Dr Clezy indicates he will require these for at least two years and most likely for the duration of his life. It is submitted that the medical information suggests there is no foreseen end date for his treatment. It is submitted that Dr Clezy’s assessment that Mr TAIVEI is safe to fly from an infectious disease perspective means that he poses no danger to other passengers and can safely complete a flight. It does not mean that he can safely or healthily reside in Fiji without the benefit of her expertise and treatment, and that of other highly trained specialists.

56.    Mr Matherson submits that Fiji does not have specialists with the level of training and expertise required by Mr TAIVEI and hospitals and medical facilities are generally not as well equipped as those in Australia. He contends that without access to appropriate specialists and medication, Mr TAIVEI is at risk of premature death.

57.    I note that since the above assessments, medical letters dated 19 October 2017 and 8 November 2017 indicate that Mr TAIVEI was readmitted to hospital due to significant deterioration in the appearance and function of his prosthetic aortic valve, suggesting that the infection had damaged his replacement valve. He required further antibiotic treatment before undergoing a further operation in November 2017 to replace the infected heart valve. As at 8 November 2017 Mr TAIVEI remained in intensive care.

58.    A letter dated 22 November 2017 from Mr TAIVEI’s treating cardiologist, Dr Sze-Yuan Ooi, indicates that Mr TAIVEI’s most recent operation involved ‘a third aortic valve replacement, with extensive excision of the surrounding cardiac and aortic tissues. His permanent pacemaker was removed in the same procedure’. Dr Ooi indicates that Mr TAIVEI faces ‘an uncertain future’ and that his complex medical problem requires long-term antibiotic treatment, a high level of medical care and expertise, frequent medical reviews, and carries ‘a high risk of morbidity and mortality.’

59.    I note that Mr TAIVEI’s sister also submits that his life expectancy is significantly reduced due to the infection and that his condition is terminal.

60.    I find that Mr TAIVEI has complex health problems with a high risk of morbidity and mortality. I find that he may be unable to receive optimum treatment in Fiji.

61.    Additionally, it is submitted that the only type of work that Mr TAIVEI may be able to find in Fiji will be physically demanding work and unsuited to his current state of health.

62.    I note that family members and Ms Walters have also expressed their concerns about Mr TAIVEI’s health and settlement difficulties should he be removed to Fiji, including the difficulty of finding suitable employment. His sister requests that he be allowed to spend the remainder of his life with his family in Australia.

63.    I accept that Fiji has a developing economy that has a health care system and offers limited social welfare support to citizens. Mr TAIVEI will have equal access to these and other services as other Fijian citizens. Given his health problems and lack of familial support in Fiji, I find that removal to Fiji will involve an element a risk to his health. I find that Mr TAIVEI will experience considerable hardship should he be removed to that country, particularly given the length of time he has lived in Australia.

64.    In considering Mr TAIVEI’s revocation request, I am mindful that his health concerns may prove a significant impediment to his removal. In addition to the likely hardship he would face if removed, I accept that non-revocation may result in prolonged detention, including the possibility of indefinite detention should his condition permanently prevent his removal.

Mr Matherson, being the person identified in paras [55] and [56] of these reasons, was Mr Taivei’s migration agent. Mr Matherson had provided a detailed submission to the Department of Immigration and Border Protection in April 2017, including submissions directed to Mr Taivei’s health condition and the medical services available in Fiji. Included with that submission was a reference to an “Australian Government website” called “SmartTraveller” which advised that “[t]he standard of public hospitals and medical facilities in Fiji is generally not of the same level as Australia in terms of services, specialist equipment … and pharmaceuticals”. The submission went on to recount that the website noted “that for serious illness or accident, medical evacuation to Australia is usually necessary”. Again, there was nothing before the Minister which ran contrary to these submissions being advanced by Mr Matherson.

The Grounds of review

20    The sole Ground set forth in the Originating Application provides as follows (without alteration):

The Minister erred in law and his decision was unreasonable and involved a denial of procedural fairness insofar as the Minister failed to take into account and have regard to, or failed to give adequate weight to, the risk of premature death to the applicant if the cancellation decision is not revoked.

Particulars

a.    The Minister found that the applicant is “critically ill with a rare mycobacterium chimaera infection as a result of his open heart surgery in 2015” (at [49]); “remained in intensive care” as at 8 November 2017 (at [57]); and “has complex health problems with a high risk of morbidity and mortality” (at [60]).

b.    The applicant claimed that “removal to Fiji will be extremely detrimental to [his] health and well-being” and that “he will require [antibiotics] for at least two years and most likely for the duration of his life” (at [55]).

c.    The applicant claimed that “he will only be able to get the medical treatment he needs in Fiji if he has the money to pay for it” (at [47]), and “without access to appropriate specialists and medication, [he] is at risk of premature death” (at [56]).

d.    The applicant claimed that “the only type of work that [he] may be able to find in Fiji will be physically demanding work and unsuited to his current state of health” (at [61]).

e.    The Minister found that the applicant “has no family in Fiji, nowhere to live, no employment and no means of support”, “was last in Fiji in 1985, does not speak Fijian, and will be regarded as an outsider because he was not raised in that country” (at [48]).

f.    Although the Minister found that the applicant will have access to “a health care system and … limited social welfare support” in Fiji (at [63]), the Minister omitted to make any findings about whether the applicant will be given his medical treatment for free; whether the applicant will be given the money he needs to pay for his medical treatment; the quality of housing, employment, and support that the applicant would otherwise be likely to receive under those systems (if any); or whether any work that the applicant may be able to find in Fiji will be physically demanding and unsuited to his current state of health.

g.    Although the Minister found that removal to Fiji will involve “an element of risk to his health”, and that the applicant will “experience considerable hardship should he be removed” (at [63]), the Minister omitted to make any findings about whether the applicant would be able to live and survive in Fiji, or whether removing the applicant to Fiji would accelerate the applicant’s death.

h.    The Minister’s failure to respond to the applicant’s claim that he will face premature death if he is removed to Fiji involved a denial of procedural fairness.

i.    It is to be inferred that the Minister failed to take into account and have regard to, or failed to give adequate weight to, the risk of premature death to the applicant if the cancellation decision is not revoked.

j.    There was no evident and intelligible justification for the Minister’s conclusion that other reasons outweighed the “hardship” to the applicant in the event the cancellation decision is not revoked (at [98]).

21    The Particulars, it will be noted, focus principal attention upon Mr Taivei’s medical condition – although Particulars (d) and (e) may be seen as going to the submissions made in respect to the prospects of homelessness and unemployment. But nothing turns on that. Counsel for the Minister quite properly addressed each of the arguments advanced on behalf of Mr Taivei before this Court.

A proper consideration of the health care available in Fiji?

22    The Originating Application was correct in focussing attention upon the manner in which the Respondent Minister addressed the health concerns facing Mr Taivei should he be returned to Fiji. Other than in respect to the brief submissions advanced before this Court as to the consideration given by the Minister to the prospect of Mr Taivei facing homelessness and unemployment in Fiji, no broader submission was directed to the Minister’s consideration of the impact of non-revocation on:

    the bests interests of minor children;

    the expectations of the Australian community;

    the strength, nature and duration of Mr Taivei’s ties to Australia;

    Australia’s business interest;

    victims; or

    the protection of the Australian community and the risk to that community.

It was common ground that if the Minister had erred in his consideration of the claims made in respect to Mr Taivei’s health conditions, his decision as a whole was vitiated by jurisdictional error.

23    In approaching the process of weighing up the many competing considerations presented on the facts of the present case, the Respondent Minister quite properly acknowledged the submissions made that:

    Mr Taivei’s medical condition would require “regular monitoring by specialists, including Infectious Diseases, Ophthalmology and Cardiology” (at para [51]);

    his condition would require antibiotics “most likely for the duration of his life” (at para [55]);

    “Fiji does not have specialists with the level of training and expertise required by Mr Taivei” (at para [56]); and

    “Mr Taivei faces ‘an uncertain future’ and that his complex medical problem requires long term antibiotic treatment, a high level of medical care and expertise, frequent medical reviews, and carries ‘a high risk of morbidity and mortality’” (at para [58]).

Given these submissions being advanced, the Respondent Minister purported to resolve them by making findings that:

    Mr Taivei “has complex health problems with a high risk of morbidity and mortality” (at para [60]);

    Mr Taivei “may be unable to receive optimum treatment in Fiji” (at para [60]);

    Mr Taivei will have “equal access” to Fiji’s health care system and limited social welfare support “as other Fijian citizens” (at para [63]); and

    his “removal to Fiji will involve an element a [sic] risk to his health” (at para [63]).

24    In reviewing the Minister’s Statement of Reasons, and in reaching a decision as to whether such reasons expose legal error, it must be accepted that such reasons are not to be read with an eye attuned to the detection of legal error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Conversely, however, where a common sense reading of the reasons provided does expose a readily discernible error, a reviewing Court should not hesitate to intervene: cf. Soliman v University of Technology, Sydney [2012] FCAFC 146 at [57], (2012) 207 FCR 277 at 295 to 296 per Marshall, North and Flick JJ.

25    Decisions made under the Migration Act have the potential to adversely affect the livelihood and well-being of visa claimants. Applicants for refugee status, it has been acknowledged, are “engaged in an often desperate battle for freedom, if not life itself”: Abebe v Commonwealth [1999] HCA 14 at [191], (1999) 197 CLR 510 at 577 to 578 per Gummow and Hayne JJ. Considering what is at stake, it is both necessary and appropriate that statements of reasons provided to visa applicants are sufficient to inform the visa applicant of the reasons for that decision and the factual basis upon which that decision was reached: cf. Yusuf [2001] HCA 30 at [69], (2001) 206 CLR 323 at 346 per McHugh, Gummow and Hayne JJ.

26    While the present case does not concern a Protection visa application or refugee status assessment, the claims being advanced on behalf of Mr Taivei nevertheless go to the very real prospect that his removal to Fiji will result in his premature death. Although the Minister’s Statement in the present case must not be overly scrutinised with an eye attuned to the detection of error where none truly exists (cf. Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22], (2013) 229 FCR 290 at 297 to 298 per Flick J (Katzmann and Wigney JJ agreeing)), it is appropriate to scrutinise those reasons with a considerable degree of care given the potential consequences faced by Mr Taivei. It is to be assumed that the Minister was also very conscious of the need to carefully consider Mr Taivei’s fate given his rather unique medical condition.

27    The submissions advanced on behalf of Mr Taivei as to the significance to be attached to the absence of express “findings” should be understood in the context of not ignoring the “findings” which the Minister did make – primarily those made at paras [60] and [63]. The findings made by the Minister include that:

    Mr Taivei has “complex health problems with a high risk of morbidity and mortality”;

    Mr Taivei “may be unable to receive optimum treatment in Fiji”;

    Removal to Fiji “will involve an element a [sic] risk to his health”; and

    Mr Taivei “will experience considerable hardship” if he is removed.

28    The conclusion that the present reasoning process does nevertheless expose legal error is founded in large part on the manner in which the Minister:

    merely “note[s]” many of the submissions which have been made and the medical opinions which have been expressed;

as opposed to:

    proceeding to resolve those submissions or making findings of fact;

29    A fair and common sense reading of the Minister’s reasons, it is considered, exposes the Minister:

    carefully juxtaposing those matters which he “note[s]” and those in respect to which he makes “find[ings]”.

In some cases, a practical and common sense reading of reasons of an administrative decision-maker may expose an interchangeability of terminology or “instance[s] of ‘looseness in language’ or ‘unhappy phrasing’” (cf. Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50 at [41], (2016) 237 FCR 305 at 314 per Tracey, Flick and Katzmann JJ (“SZUSU”)) such that no meaningful distinction should be drawn between the way two terms are used; in other cases, a practical and common sense reading of such reasons may expose a careful distinction being made by the decision-maker.

30    In the present case, the Minister:

    sets forth the substance of the medical opinions being expressed, or at least some of those opinions, and either “note[s]” those opinions or submissions or sets forth that which the opinion “indicates” (e.g., at paras [51], [52], [54], [55] and [57]);

and thereafter:

    sets forth what the Minister “find[s]” or “accept[s]” (e.g., at paras [60] and [63]).

But missing from the Minister’s process of consideration are findings of fact directed to the opinions of Associate Professor Post and Drs Clezy and Ooi. Although the opinions may well have been “noted” or it may have been accepted that the evidence “indicate[d]” certain things, left unanswered in the reasons provided is:

    whether the Minister accepted as factually accurate what was being put to him;

or:

    whether the Minister rejected or had reservations about the medical opinions being presented or whether they (for example) overstated the medical difficulties Mr Taivei faced or whether they were opinions expressed more in the nature of a partisan statement or with an “advocate’s flourish” rather than as objective statements of fact.

Rejected is a submission advanced by Counsel on behalf of the Minister that the use of the term “note” should be read as the Minister accepting as factually correct that which he merely “note[s]”. The Statement of Reasons, it is considered, deliberately draws a distinction between that which is “note[d]” and that which the Minister “find[s]”. The Minister, it may be assumed, was conscious of the statutory obligations imposed upon him to “set out the findings on material questions of fact” (Acts Interpretation Act s 25D) and conscious of the need to set forth those “findings” which he considered were “material” to the decision made: cf. Yusuf [2001] HCA 30 at [69], (2001) 206 CLR 323 at 346 per McHugh, Gummow and Hayne JJ. It may well be an unproductive exercise to consider the variety of other expressions which may have been employed by the Minister to convey his “acceptance” of the medical opinions being expressed. One simple expressions would have been for the Minister to “accept” those opinions (which is again language used elsewhere in the reasons) as opposed to merely “note” them. But the Minister did neither – he neither made “findings” as to the medical opinions being expressed nor “accepted” those opinions.

31    Although the Minister, for example, sets forth what the reports of Dr Clezy “indicated” (at paras [53] and [55]) and “note[s]” the submissions being made (e.g., at para [55]), there are no findings made directed to the opinions of Dr Clezy with respect to such matters as:

    the comparative rarity of the medical condition suffered by Mr Taivei and the uncertainty surrounding the “most appropriate treatment”;

    the need for “regular monitoring” and regular “follow up visits with specialists”; or

    the need for “access to immediate specialist health care” if Mr Taivei’s health deteriorates.

Also missing from the Minister’s process of consideration is any specific finding with respect to the opinions of the Interventional Cardiologist, Dr Ooi, as to such matters as:

    that Mr Taivei’s medical care will require “frequent visits and a high level of medical expertise” and that such care “will be of the utmost importance” to give Mr Taivei “the best opportunity for a favourable outcome”.

Rejected is the further submission advanced on behalf of the Minister that the statements at (for example) paras [53] and [55] were but a short-hand acceptance of the entirety of the opinions being conveyed to him by the medical practitioners. There was, it was accepted by Counsel on behalf of the Minister, no disagreement expressed by the Minister with respect to those opinions. Given the terms in which the Statement of Reason were drafted, it is, with respect, far from self-evident that the Minister was nevertheless expressing any unqualified acceptance of the medical opinions being expressed or making any findings that the matters set forth in those opinions were factually accurate.

32    Also missing from the Minister’s reasons – which would readily be expected if “proper” and “genuine” consideration was given to the submission being advanced – is any consideration of or any findings directed to:

    whether the particular medication required by Mr Taivei is even available in Fiji; and

    whether the specialists identified in the medical evidence as necessary for Mr Taivei’s care, namely specialists in “Infectious Diseases, Ophthalmology and Cardiology”, are even available in Fiji.

Although it may be correct to find that Mr Taivei “may be unable to receive optimum treatment in Fiji”, again what is missing is any findings being made or consideration being given to:

    the “treatment” in fact available, not just whether or not it is “optimum” or even “adequate”; and

    the nature of the “limited social welfare support” which is available to Mr Taivei as a citizens of Fiji (at para [63]).

33    Further, no finding addresses the representation made on behalf of Mr Taivei that a consequence of removal to Fiji would be that Mr Taivei is at risk of premature death. This submission was acknowledged by the Minister (at para [56] and possibly [59]). However, the finding (at para [60]) that Mr Taivei has “complex health problems with a high risk of morbidity and mortality” is true whether or not he remains in Australia. It does not address the consequences for those “health problems” of his removal to Fiji and, more particularly, the prospect of “premature death”. At no point does the Minister make findings that there is, in fact, no risk of premature death from his removal to Fiji, only that he “may be unable to receive optimum treatment in Fiji” (at para [60]) and that removal would involve “an element of risk to his health” (at para [63]). Nor does the Minister conclude that, even if there is a risk of premature death, it is not “another reason why the original decision should be revoked” (Migration Act s 501CA(4)(b)(ii)).

34    The absence of any findings going to these matters is only underlined by the Minister’s reference in his Statement of Reasons to the submissions of Mr Matherson (at paras [55] and [56]) but the absence of any consideration or finding with respect to an important part of those submissions, namely:

    Mr Matherson’s recounting of the content of the “SmartTraveller” website; and

    the advice on that website that it is “usually necessary” to remove people with “serious illness” to Australia.

35    The focus upon those findings which are not made by the Minister in his Statement of Reasons is not to focus upon findings which this Court may itself have considered to be findings “material” to the decision to be made but rather is a focus upon what the Minister failed to do. The mandate imposed upon the Minister by s 25D of the Acts Interpretation Act to set forth those findings which he considered to be “material” exposes the Minister falling short of giving “proper, genuine and realistic” consideration to the material before him and the submissions being made.

36    In the present case it is respectfully concluded that there has been no “looseness” in language (cf. SZUSU [2016] FCAFC 50 at [41], (2016) 237 FCR 305 at 314 per Tracey, Flick and Katzmann JJ) but rather a careful and deliberate use of terminology on the part of the Minister.

37    Left to one side is further reservation as to why the Minister saw fit to qualify the finding made at para [60] by saying that Mr Taivei “may” be unable to receive optimum treatment.

38    It matters little, with respect, whether the missing aspects of the Minister’s consideration be characterised as:

    a failure to give “proper, genuine and realistic” consideration to the claims being made (cf. Khan v Minister for Immigration and Ethnic Affairs (unreported, FCA, Gummow J, 11 December 1987); Williams v Minister for the Environment and Heritage [2003] FCA 535 at [29], (2003) 74 ALD 124 at 130 per Wilcox J; WZAQU v Minister for Immigration and Citizenship [2013] FCA 327 at [12] to [13], (2013) 233 FCR 534 at 537 to 538); or

    legal unreasonableness (cf. Minister for Immigration and Citizenship v Li [2013] HCA 18 at [28], (2013) 249 CLR 332 at 350 to 351 per French CJ (“Li”)).

39    A decision based upon a process of reasoning or sequential factual findings in respect to which there are significant “missing” elements can also be regarded as:

    a denial of procedural fairness. An opportunity to be heard and an opportunity to advance submissions may well fall short of affording procedural fairness if a centrally relevant submission is not genuinely “heard” and considered. It is a denial of procedural fairness to fail to take into account submissions that have been made: cf. MZAFS v Minister for Immigration and Border Protection [2016] FCA 75 at [7], (2016) 237 FCR 347 at 348 to 349 per Edelman J. An opportunity to be heard is of little meaning to a visa claimant if the decision-maker does not listen to what is being said and thereby does not “hear” and consider what is being advanced. An opportunity to be heard goes beyond the mere allocation of time in which to make oral submissions or an opportunity to provide written submissions; it includes the requirement to thereafter consider what is being put forward for consideration: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [389], (2013) 210 FCR 505 at 577 to 578 per Flick J.

To so recognise is to recognise nothing more than the fact that grounds of review, including grounds of review which go to the jurisdiction of an administrative decision, may overlap.

40    A similar conclusion to that reached in the present case was reached in Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 at [49]. It was there concluded that the Minister’s mere “not[ing]” of various matters of evidence was a failure to give “proper, genuine and realistic consideration” to the matters identified. An appeal from that decision was heard by the Full Court in May 2018, but judgment is still reserved. The Respondent Minister submitted that if the decision in Buadromo is to be determinative of the present application, it may be appropriate to await the decision of the Full Court. That submission is rejected. It is respectfully considered that the decision in Buadromo and the decision in the present case are decisions directed – not surprisingly – to the facts and circumstances of each individual case and a proper construction of the reasons provided in each case.

41    The absence of findings directed to the content of the medical opinions being expressed, it is respectfully considered, goes beyond a mere failure to refer to each and every piece of evidence presented for resolution and exposes a failure on the part of the Minister to genuinely engage with those medical opinions. There is no requirement upon an administrative decision-maker “to refer to every piece of evidence and every contention made by an applicant in its written reasons”: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46], (2003) 236 FCR 593 at 604 per French, Sackville and Hely JJ. Nor is an applicant entitled to opportunistically trawl back through submissions made with a view to finding some statement of a disputed fact or some material which has not previously been given much emphasis in submissions made and one which has (perhaps not surprisingly) not been specifically addressed by the Minister or given any great prominence in the reasons provided and thereafter rely on it to found an argument as to error on the part of the Minister: cf. Stojanovski v Assistant Minister for Immigration and Border Protection [2017] FCA 609 at [71] per Flick J.

42    But what an applicant is legally entitled to is a “proper, genuine and realistic consideration” of the claims being made. The present case is one in which the visa holder was presenting his medical condition and the consequences of non-revocation as a substantial basis for seeking Ministerial intervention and a case where submissions centrally relevant to the claims being made went largely unanswered. The generalised finding (for example) that Mr Taivei “may be unable to receive optimum treatment in Fiji” is no substitute for findings directed to the medical opinions being expressed and the potential consequence of premature death.

43    It is considered that the conclusion as to legal unreasonableness by reason of that which is missing from the Ministerial process of consideration – as opposed to simply (and impermissibly) reaching a different assessment of the facts presented – does not impermissibly elevate a finding of legal error into a “vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker”: Li [2013] HCA 18 at [28] to [30], (2013) 249 CLR 332 at 350 to 351 per French CJ. See also: [2013] HCA 18 at [66], (2013) 249 CLR at 363 per Hayne, Kiefel and Bell JJ.

44    The conclusion in the present case that the decision is legally unreasonable is a conclusion founded upon the fact that the decision made by the Minister appears to be based upon a series of unstated assumptions or unstated findings of fact. The decision is thus one which “lacks an evident and intelligible justification”: Li [2013] HCA 18 at [76], (2013) 249 CLR at 367 per Hayne, Kiefel and Bell JJ.

45    The present conclusion, it is considered, does not impermissibly trespass into the area of “decisional freedom” which remains a matter for the Minister alone: Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [62], (2016) 240 FCR 158 at 171 per Allsop CJ, Griffiths and Wigney JJ. Had findings of fact been made in respect to those “missing” matters, even if erroneously found, any such error may have been an error within jurisdiction. To recognise such possibilities, however, is to simply recognise that any future findings that may be made and any future decision remain matters for the Minister.

CONCLUSIONS

46    The decision of the Minister should be set aside.

47    This conclusion is one which necessarily follows from the peculiar facts and circumstances of the present case and a conclusion founded upon the Minister’s Statement of Reasons. The factual scenario presented to the Minister for his consideration, the findings of fact that necessarily had to be made, and the submissions the Minister was called upon to address were far from the normal “run of cases” and ones which were particularly unique.

48    Given the conclusions focussed upon Mr Taivei’s medical condition, it is unnecessary to resolve the further submissions as to whether para [48] of the Minister’s Statement of Reasons should be read as a finding of fact which would have resolved the separate arguments directed to Mr Taivei’s claims that he would be unemployed and homeless if returned to Fiji.

49    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The decision of the Respondent made on 30 April 2018 is set aside.

2.    The matter is remitted to the Respondent for reconsideration in accordance with law.

3.    The Respondent is to pay the costs of the Applicant.

Associate:    

Dated:    2 August 2018