FEDERAL COURT OF AUSTRALIA

ENU18 v Minister for Home Affairs [2019] FCA 1391

ORDERS

THE COURT ORDERS THAT:

1.    The first applicant be appointed as the litigation guardian for the third applicant for the purposes of this application for an extension of time filed on 20 March 2019.

2.    The application for an extension of time be dismissed.

3.    The first, second and fourth applicants pay the first respondent’s costs fixed in the sum of $7,241.00.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

RARES J:

1    This is an application for an extension of time in which to file an appeal from the decision of the Federal Circuit Court refusing the applicants Constitutional writ relief in respect of the decision of the Immigration Assessment Authority given on 9 August 2018 to affirm the Minister’s delegate’s decision not to grant the applicants protection visas: ENU18 v Minister for Home Affairs [2019] FCCA 254.

2    The applicants are a family of four, a husband, wife and their two children, one of whom is a minor, who are citizens of Iraq. By consent, I appointed the father as litigation guardian of the minor child.

Background

3    The Minister tendered the court book that was before the trial judge to elucidate the context in which the Authority’s impugned findings came to be made. The applicants had a migration agent acting for them in the administrative processes, both when pursuing their claims before the delegate and, subsequently, before the Authority. In a submission made following the husband’s interview on 13 December 2017 with the delegate, their migration agent outlined her clients’ claims for protection. Under the heading “Unreasonableness of Relocation”, the migration agent noted that the family had fled Iraq nearly five years earlier and “Whilst seeking asylum in Australia [the husband] has not worked and his wife has diabetes”.

4    The delegate considered the substantive claims of the applicants. One claim was that one of their children had been kidnapped. The delegate recorded that the husband had responded, “No” when asked if his family were considered wealthy in Iraq. The delegate accepted that there was nothing particular about the applicants that distinguished them from other Shia Arabs in their home region. The delegate also considered, in four paragraphs under the heading “Medical condition (diabetes and unknown) and significant harm”, the wife’s current health condition of diabetes and whether her return to Iraq would exacerbate that condition to the extent that she would suffer significant harm.

5    The delegate referred to country information. That indicated that the Iraqi health system consisted of public and private health providers and that services in public sector hospitals were free, although, nominal charges were often required to be paid. He identified other country information that stated that most kinds of medication were available in Iraq, but not necessarily at public hospitals. He referred to other country information that stated that, in Iraq, drugs were dispensed at a subsidised cost and drugs for chronic diseases were provided free to people with a chronic disease card, and concluded:

There is no information before me to suggest that [the husband] and [the wife] will be unable to access or would be denied access to medical services in Iraq. Therefore, I do not find that [the husband] and [the wife] will face a real risk of suffering significant harm in Iraq due to their health conditions.

6    The delegate considered this subject of the wife’s medication condition and needs under the rubric of Australia’s complementary protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth) and not under the Refugees Convention grounds. Ultimately, counsel for the applicants before me put that this subject had to be considered under s 36(2)(a) of the Act.

The Authority’s decision

7    The migration agent wrote a submission to the Authority on 5 April 2018 that stated that the submission:

will respond to the delegate’s findings and will refute the reasons for rejecting the protection claims of the applicants. Our submission outlines the protection claims of the applicants, and demonstrates, with reference to their evidence, independent information and relevant law, that they meet the criteria of persons for whom Australia has protection obligations under s 36(2)(a) and/or s 36(2)(aa) of the Migration Act 1958.

(emphasis added)

8    Relevantly, the submission made no reference whatsoever to the medical condition of the wife or the availability or cost of drugs or medical services in Iraq.

9    Nonetheless, in its decision, the Authority, carrying out its function of reviewing the delegate’s decision, did consider what the delegate had said on the question of the applicants’ health. It did so after considering, among other claims, their claim to fear harm as a result of the kidnapping of the child. The Authority noted that the applicants had not claimed that any ransom had been demanded for their child’s release, adding “and they further indicate that the family is not wealthy”. It was not satisfied that the alleged kidnapping had occurred at all.

10    When it came to consider the applicants’ claim to fear harm from the Sunni or Shia armed groups and the general security situation in Iraq, the Authority referred to the husband’s evidence in his interview with the delegate when he said that people who were considered wealthy in their home province were subject to demands for ransom, and that he had said his family were not considered to be wealthy.

11    The Authority was not satisfied that, in the applicants’ circumstances, in the region in which they lived or were they to return there in the reasonably foreseeable future, as ordinary Shias who were not considered to be wealthy, they faced a real chance of harm from Islamic State or Sunni groups, Shia militias or anyone else as a result of the country situation.

12    The Authority then dealt with the question of healthcare. It noted that the migration agent had raised concerns, in general terms, about the wife’s health at the interview with the delegate, “although she also stated that she had not done the research on that”, and that the wife also had stated in the interview that she was concerned about her medication.

13    The Authority referred to the migration agent’s submissions after the interview that I have set out in part above. The Authority found that the husband had not raised any concern about his medical condition if he were to return to Iraq, and that it was not clear if he even had been diagnosed with any medical condition.

14    Importantly, the Authority found that no medical evidence had been provided in support of any of the applicants’ assertions as to their health. But, it accepted that the wife had diabetes that had been diagnosed in Australia and that the husband may have some unknown medical condition. The Authority then summarised the same country information that the delegate had considered. It also found that treatment in private hospitals was a choice for those who wanted special care and could afford it, Iraq’s health infrastructure had suffered from decades of insecurity, and the recent conflict had further reduced access to health services. It found that healthcare facilities, particularly in conflict-affected areas with large numbers of internally displaced people, were inadequately resourced and overburdened, but most kinds of medication were available in Iraq, although not necessarily in public hospitals.

15    It repeated the delegate’s finding, based on country information, as to the availability of drugs. It then found that the husband and wife:

provide[d] no details about the severity of their medical conditions, the medical treatment they require, the medication they take and whether their medical needs could not be met in Iraq. There is no supporting information from a medical professional. Although the health services in Iraq may be inferior to what Australia can offer, I am not satisfied that [the husband] and [the wife]’s medical needs cannot be met in Iraq. I am not satisfied that [the husband] and [wife] cannot access…the medical care/medication they require. I am not satisfied that any difficulty they face, if any, amounts to serious harm or that they are [the] consequence of any systematic and discriminatory conduct.

(emphasis added)

16    I interpolate here that the applicants appear to challenge this finding in their new ground of appeal as either having no evidence or intelligible justification to support it or being illogical and irrational.

17    The Authority was not satisfied that, even though the applicants had left Iraq as a family, having sold their family home and that the husband may have some medical condition and the wife had diabetes, they would not be able to re-establish themselves if they were to return to their home region. It also was not satisfied that their capacity to subsist would be threatened or that they faced a real chance of serious harm were they to return there. Accordingly, it rejected their claim to protection under s 36(2)(a) of the Act.

18    The Authority also was not satisfied that there was a real risk that the husband or wife would be unable to access the medical care or medication they might require if they were to return to Iraq, or that either:

face a real risk of being subject to death penalty or arbitrary deprivation of life if they were to return to Iraq. I also find that any difficulty they may face in accessing adequate medical care due to the lack of services does not involve torture, degrading treatment or punishment, cruel or inhuman treatment or punishment, as there is no intention to inflict severe pain or suffering, pain or suffering that is cruel or inhuman in nature, or an intention to cause extreme humiliation.

(emphasis added)

19    Thus, it dismissed the applicants’ claim for complementary protection under s 36(2)(aa) in respect of this and all their other claims.

The new proposed ground of review

20    The applicants seek to raise, as the second ground, in their draft notice of appeal a new ground that was not put when the applicants were unrepresented in the Federal Circuit Court. The applicants have not pressed the original first ground that reflected what had been put to the trial judge, namely, that the Authority had made an unspecified jurisdictional error. The applicants argued that they should be allowed to rely on the new ground, notwithstanding that it had not been raised before his Honour, because of the applicants’ change of circumstances from being not represented, and able properly to articulate their case before the trial judge, to their present situation. The new ground asserts that the Authority made a jurisdictional error:

by making a finding of fact which was legally unreasonable or in respect of which the Authority failed to engage in proper, genuine and realistic consideration.

21    The particulars to the new ground allege that:

    the Authority had noted that they were not considered to be wealthy in Iraq and the wife had diabetes for which she required medication;

    the Authority found (in substance), based on country information, that treatment in private hospital was a choice for those who could afford such care, most kinds of medication were available in Iraq but not necessarily in public hospitals, and drugs were dispensed at subsidised costs to some and free of charge to those with a chronic disease card;

    there was no intelligible justification for the Authority’s finding that the wife would have medical treatment available to her because it had made no finding that the family could afford private healthcare, or subsidised drugs, or that the wife would be eligible for a chronic disease card; and

    there was no active intellectual engagement by the Authority with the facts before it as to medication in Iraq including whether drugs to treat diabetes were available, whether that condition was covered by a chronic disease card or whether the family could afford private, or obtain subsidised, healthcare.

22    The trial judge summarised the relevant findings of the Authority and dismissed all four grounds of the application argued before him. Because the new ground formed no part of the applicants’ case below, they accept that, if given leave to appeal, the costs order made by the trial judge in the Minister’s favour, should not be disturbed.

The applicants’ explanation for being out of time

23    In his affidavit of 19 March 2019 in support of the application for an extension of time of about three weeks, the husband explained that he had appeared for himself and his family before the trial judge and had subsequently sought advice from two lawyers as to the prospects of an appeal from his Honour’s decision, but that each lawyer had advised him that, at that stage, they could not assist until a written copy of the trial judge’s reasons of 6 February 2019 had been provided by the Court.

24    He said that, when he swore his affidavit, he was still waiting for the written reasons and could not obtain proper legal advice, as a result of which he was then able to file his application. He said that he would seek a lawyer’s opinion and possibly make amendments on receipt of such an opinion. He said that he could not have filed his appeal within the prescribed time due to the fact that the written version of the trial judge’s reasons delivered orally had not been published.

25    On 25 July 2019, the applicants’ then present solicitor swore a further affidavit in support of the application which stated that the trial judge’s published reasons became available on 5 April 2019. The solicitor said that he had been instructed on 26 June 2019, and he briefed counsel who prepared the draft amended notice of appeal filed on 1 July 2019.

26    The application for an extension substantively has been argued as if it were an appeal, if leave were granted to add the new ground and an extension of time were also granted. Counsel for the applicants accepted that if they were unable to establish sufficient merit in the proposed new ground of appeal, then the application for an extension of time necessarily would fail.

The applicants’ submissions

27    The applicants acknowledged that they had to accept the shortcomings in the way their case had been put to the Authority in the course of prosecuting their claims for a protection visa and that greater detail should have been provided to it about the medical condition and needs of, relevantly, the wife. However, they contended that it was tolerably clear from both the information before the Authority and its findings that they were not wealthy, the wife had a diagnosed condition of diabetes that required medication which, they asserted, would at least include insulin and, in Iraq, medication was not necessarily available in public hospitals, private healthcare was only available for those who could afford it and that, outside public hospitals, medication was available at a subsidised cost and free of charge to those with a chronic disease card. They submitted that, in those circumstances, the Authority had failed to have an active intellectual engagement with whether the applicants would be able either to afford medication for diabetes or obtain the benefit of a chronic disease card. They argued that it followed that the Authority had not carried out its statutory obligations in arriving at its conclusion that it was not satisfied that they could not access the healthcare they required in Iraq. They contended that the Authority’s conclusion that any deprivation of healthcare to them would not amount to serious harm was based on fragile foundations that had no evident or intelligible foundation because, they said, the Authority had not analysed the position.

28    The applicants submitted that the Authority acted in a legally unreasonable manner in arriving at its findings without considering and finding that the applicants could afford subsidised medication, such as insulin, or that the wife’s diabetes would entitle her to a chronic disease card. They argued that it had no sufficient basis for concluding that “any deprivation of healthcare would not amount to serious harm”.

29    In oral argument, I pressed counsel for the applicants to identify the claim to Australia’s protection obligations on which they relied that arose out of the ground relating to their health and medical conditions. Initially, counsel resisted doing so, asserting that all he needed to do to establish a jurisdictional error by the Authority was to show that it had made an error of fact concerning the ability of the wife to obtain medical treatment or medication for her diabetes and that this was material. They contended that if this were so, the Authority’s decision was legally unreasonable or evinced a lack of proper, genuine and realistic consideration by the Authority of a substantial clearly articulated argument relying upon established facts: see NABE v Minister of Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 22 [68].

30    Ultimately, when pressed, counsel asserted that the Authority should have considered that the applicants claimed to fear persecution by reason of their membership of a particular social group consisting of persons who suffered from diabetes requiring medication within the meaning of s 5J of the Act. They contended that the persecution involved serious harm to the wife that amounted, within the meaning of s 5J(4)(b) and (5)(a), (c) and (e), to one or more of a threat to her life, significant physical ill-treatment, or a denial of access to basic services where that denial threatened her capacity to subsist.

Consideration

31    In Coulton v Holcombe (1987) 162 CLR 1 at 7-8, Gibbs CJ, Wilson, Brennan and Dawson JJ said that it is “fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial”, and that an appellate court, ordinarily, must exercise its powers with respect to amendment within that general framework and not otherwise. They held that, ordinarily, a party is bound by the conduct of his, her or its case and that it would be contrary to principle to allow a new argument to be raised on appeal, even if by inadvertence it had not been advanced at the trial.

32    Allowing for the fact that the applicants represented themselves before the trial judge, I have considered whether it would be in the interests of justice to grant leave to amend the proposed notice of appeal to add the proposed new ground.

33    In my opinion, the proposed new ground has no prospect of success. First, s 5J(4) requires that, relevantly here, the applicants’ fear of persecution for reasons of membership of a particular social group must be the essential and significant reason for the persecution, must involve serious harm to, relevantly, the wife, and must involve systematic and discriminatory conduct. The claim that counsel articulated in response to my inquiry cannot rationally be seen to fall within the meaning of s 5J(4). That is because there was no basis before the Authority to suggest that the applicants or the wife, in particular, claimed that the essential and significant reason that she would be denied healthcare or medication was that she had diabetes and that the persecution involved systematic and discriminatory conduct. The migration agent did not identify any such claim as one that the applicants made. Moreover, the material before the Authority and the country information demonstrated that there was no possible argument that anyone in Iraq engaged in systematic or discriminatory conduct involving serious harm to persons who needed healthcare or medication. There was no such claim before the Authority or anything that represented “a substantial clearly articulated argument relying upon established facts” for it to investigate: NABE 144 FCR at 22 [68] per Black CJ, French and Selway JJ. As they said, a judgment should not be made lightly that an administrative decision maker has failed to consider a claim not expressly advanced.

34    Secondly, the finding that the applicants were not considered wealthy did not equate to the fact that they were, or would be, impoverished or unable to access healthcare or medication. The finding merely referred to them being in a position like ordinary members of society in Iraq, so that others would not perceive any benefit from subjecting them to demands that would or could be directed to persons perceived to be wealthy in order to extract the perceived wealth from them, such as by the kidnapping of their family members. The Authority did not find that the applicants would be indigent or impoverished were they returned to Iraq. Indeed, it found that they had not satisfied it that their capacity to subsist would be threatened or that they faced a real chance of serious harm were they to return to Iraq. In making that finding, the Authority necessarily had regard to country information about the availability of healthcare and medication in Iraq.

35    Thirdly, the Authority found that the applicants had provided no detail about their medical conditions or needs for treatment or medication beyond finding that the wife suffered from diabetes. She did not provide any indication of the severity of the condition, what her treatment was, what she needed, what any costs involved were or whether she, in fact, would have been able to access healthcare or medication in Iraq. Critically, she made no claim directly, or through her migration agent, or otherwise that she would not be able to access healthcare or medication were she to return to Iraq.

36    Both the delegate and the Authority considered the position in Iraq with respect to healthcare based on the material which the applicants provided having regard to the requirement in s 5AAA(2) of the Act that the applicants had “responsibility…to specify all particulars of his or her claim to be [a person in respect of whom Australia has protection obligations (however arising)] and to provide sufficient evidence to establish the claim.”

37    The Authority found that it did not have before it any material or evidence from the applicants to establish that they, or the wife, would suffer systematic and discriminatory persecution in respect of their ability or otherwise to access healthcare and medication were they to return to Iraq.

38    I am of opinion that there was no basis for the Authority to be diverted into considering a claim that was never made or articulated and for which the applicants provided no evidence at all in support.

39    French CJ, Kiefel, Bell and Keane JJ held in Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 at 637 [76]-[77] that discriminatory conduct for a reason specified by the Refugee Convention will not be within the Convention if it were justified by a local law that could be said to be appropriate and adapted to achieving some legitimate national objective. They cited the following passage from the reasons of Gleeson CJ, Gummow and Kirby JJ in Applicant S v Minister for Immigration and Cultural Affairs (2004) 217 CLR 387 at 402 [43]:

The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A. His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is “appropriate and adapted to achieving some legitimate object of the country [concerned]” [Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258]

(emphasis added)

40    French CJ, Kiefel, Bell and Keane JJ continued (at 637 [77]):

The passage cited from Applicant S makes it clear that an inquiry into whether a law or policy is “appropriate” to some legitimate object of the country concerned is relevant only once it is concluded that the law or policy results in discriminatory treatment for a reason specified by the Convention.

(emphasis added)

41    The Authority’s findings about the availability of healthcare and medication in Iraq do not evince any suggestion that the health system in that country (or the ability to access it) involved any systematic and discriminatory conduct against persons with diabetes or other diseases or medical conditions.

42    The applicants also argued that all they needed to do to establish a sufficient basis to establish the new proposed ground was to show that the Authority’s findings of fact lacked an evident and intelligible justification or evinced a lack of an active intellectual engagement with the facts on which they relied. They contended that they did not need to relate those facts to a claim for protection that the applicants had made or which was available on the material before the Authority in accordance with the principles in NABE 144 FCR at 22 [68].

43    I reject that argument. It was only necessary for the Authority to make findings about the claims before it. It did so. Moreover, the applicants need to establish that the Authority made a jurisdictional error in considering, or failing to consider, a claim for protection that they made (or that arose on the material before it in the sense specified in NABE 144 FCR at 22 [68]), and that such an error was sufficiently material to enliven the discretion to grant Constitutional writ relief: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 at 9 [29]-[31] per Kiefel CJ, Gageler and Keane JJ. Their Honours held that a jurisdictional error that attracts the availability of relief under s 75(5) of the Constitution:

consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by [the Migration Act]. Ordinarily, as here, a breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.

44    And, in an application for judicial review, except in a case where the decision made was the only decision legally available to be made, the question of materiality of the asserted jurisdictional error is an ordinary question of fact in respect of which the applicant bears the onus of proof: Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 at 611 [45]-[46] per Bell, Gageler and Keane JJ.

45    I am not persuaded that the proposed new ground has any merit. In fact, I am of opinion that it is hopeless.

Conclusion

46    For these reasons, I refuse the application for an extension of time since no useful result could arise from granting it. The adult applicants must pay the Minister’s costs fixed in the sum of $7,241.

Associate:

Dated:    30 August 2019

SCHEDULE OF PARTIES