Federal Court of Australia

ERE18 v Minister for Home Affairs (No 2) [2021] FCA 1346

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and the interlocutory application to lead further evidence on appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    The applicant seeks an extension of time to appeal from the whole of the judgment of the Federal Circuit Court reviewing a decision of the second respondent, the Immigration Assessment Authority. The Circuit Court judgment was delivered ex tempore on 7 February 2019 following a hearing on that date and published in writing a few weeks later: ERE18 v Minister for Home Affairs & Anor [2019] FCCA 262.

2    As will be seen, the applicant also seeks leave to rely on evidence that was not before the Circuit Court and he seeks leave to rely on a ground of review that was not advanced before the Circuit Court. On a previous occasion, I made orders to enable the simultaneous hearing of the application for an extension of time and the appeal, if an extension is granted: ERE18 v Minister for Home Affairs [2021] FCA 997.

Background

3    The applicant, a male citizen of Lebanon, arrived in Australia by boat from Indonesia with the assistance of people smugglers at Christmas Island in May 2013. Also, in May 2013, he gave an arrival interview at which he made claims to fear harm in his home country. The applicant said that as a result of the Syrian civil war, Lebanon had experienced an influx of Syrian refugees which had led to the rise of militias and also economic problems. The applicant’s sister also attempted to travel to Australia by boat, however she tragically died at sea on the attempt.

4    Some 18 months after arriving in Australia, the applicant married an Australian permanent resident. He and his wife have two daughters, both of whom are Australian citizens. He has established his own business in Sydney, in which he works full-time. If he was to have to return to Lebanon, he has said that his wife and children would go with him.

5    On 6 October 2016, following an invitation from the (then) Department of Immigration and Border Protection to apply for a visa, the applicant applied for a Temporary Protection (subclass 785) visa (TPV). The applicant enclosed with his application a statement in which he said he was unable to return to Lebanon because Syrians and extremist Muslims were recruiting young men to fight the Alawites in Syria. He also said that he feared being caught in crossfire between Syrian refugees and Hezbollah and that Lebanon was too dangerous for his family to return to.

6    At an interview by a delegate of the Minister in June 2018, the applicant made some additional claims which were summarised in the delegate’s reasons as follows:

•    The applicant has a heart problem and takes Metoprolol to regulate his heart beat.

•    The security situation in Lebanon is very dangerous and the war in Syria has spilled over into Lebanon creating tensions between the different religious and political groups.

•    There are many non-state militia who possess arms. The applicant fears that given the proliferation of firearms, he and his family may be harmed in the context of a violent and unstable security situation in Lebanon.

7    On 26 June 2018, the applicant was notified of the delegate’s decision made earlier that day to refuse his TPV application. The delegate accepted that the applicant’s claims regarding the general security situation in northern Lebanon were true. However, the delegate noted that the applicant did not claim to ever have been targeted by militia for recruitment or harassed because he was Sunni. The delegate also found that the applicant and his family did not face a risk of serious harm due to his family circumstances or on account of deportation to Lebanon. In relation to the complementary protection criterion, the delegate examined country information and found that Lebanese health authorities would be able to provide him with adequate care.

The Authority’s decision

8    The delegate’s decision was referred to the Authority for review under s 473CA in Pt 7AA of the Migration Act 1958 (Cth) as a “fast track review process”.

9    The applicant did not make a submission or provide any further information in support of his case on review. Neither was he invited to do so.

10    On 17 August 2018, the applicant was notified of the Authority’s decision made earlier that day to affirm the decision on review.

11    The Authority noted that the applicant had never claimed to have been targeted for recruitment or otherwise by militia such as Hezbollah or extremist Muslim groups (at [10]). It considered country information in finding that the applicant was not subject to a real risk of serious harm from parties involved in the Syrian conflict or Hezbollah (at [15]-[16]).

12    In relation to the complementary protection criterion, the Authority held that while the applicant may receive better healthcare in Australia than he would in Lebanon, the concept of “significant harm” in s 36(2A) of the Migration Act does not include a right to access a certain standard of healthcare.

Decision in the Circuit Court

13    By an application filed with the Circuit Court on 10 September 2018, the applicant sought judicial review of the Authority’s decision and raised the following two grounds:

1.     Contrary to the comment made by the Delegate there is substantial grounds that I will suffer significant harm with my family should I return to Lebanon;

2.     The Delegate misunderstood my well-founded fear of harm should I be compelled to return to Lebanon.

14    While both grounds 1 and 2 asserted errors on the part of the “Delegate”, the judicial review application noted that the decision of which review was sought was that of the Authority on 17 August 2018. The delegate’s decision is a primary decision as defined by s 476(4) of the Migration Act and as such was not susceptible to judicial review by the Circuit Court: s 476(2). Accordingly, the matter was dealt with as though references to “the Delegate” in the applicant’s grounds were intended to be references to the Authority.

15    The applicant appeared before the primary judge on 7 February 2019 for hearing, assisted by an Arabic interpreter. He was otherwise self-represented.

16    In relation to ground 1, the Circuit Court found that the Authority’s findings pertaining to the complementary protection criterion were open to it for the reasons that it gave (at [26]). The Court noted that the Authority made dispositive findings in respect of the applicant’s claims under each of the refugee and complementary protection criteria which were logical and could not be said to lack an evident and intelligible justification.

17    In relation to ground 2, the Circuit Court found that the Authority had taken into account the consequences of the applicant’s family travelling with him back to Lebanon, and that no misunderstanding by the Authority of the evidence had been identified (at [27]). The Court concluded that the Authority had correctly identified the relevant tests under the Migration Act and made adverse findings that were open to it, which findings were not illogical, irrational or unreasonable.

Application for an extension of time

18    By an application for an extension of time filed on 11 November 2019, the applicant seeks to extend time to appeal from the whole of the judgment of the Circuit Court. Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth), any notice of appeal from the decision of the primary judge was due to have been filed on or by 7 March 2019. Accordingly, the application was 249 days (or just over 8 months) out of time. On any view, that is a long time.

19    The following explanations are advanced by the applicant for his delay in seeking review in this Court:

(1)    the applicant sought ministerial intervention, which was refused and that is when he decided to appeal his matter to the Federal Court; and

(2)    he was unaware he had to lodge an appeal within a certain timeframe.

20    An applicant’s election to pursue an application for Ministerial intervention in lieu of an appeal is not generally accepted as being a satisfactory explanation: Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; 101 ALD 211 at [29]-[30] per Jessup J, Gyles and Besanko JJ agreeing; MZZLL v Minister for Immigration and Border Protection [2015] FCA 1367 at [10] to [15] per Murphy J. The remedies of appeal and applying to the Minister are not mutually exclusive; the public interest in finality in litigation generally outweighs the exercise of appeal rights being delayed in order to pursue some other ‘Plan A’ with an appeal being treated as ‘Plan B’.

21    In any event, the applicant’s pursuit of Ministerial intervention does not account for the delay between 12 July 2019 (being the date proffered by the applicant as the date upon which the application to the Minister was refused), and his eventual application for an extension of time on 11 November 2019, being some 122 days (or almost 4 months). The applicant was unrepresented throughout this time and so it cannot be said that anything materially changed such as to explain why he eventually applied to the Court but could not have done so sooner.

22    Further, the applicant had applied to the Circuit Court within time for review of the Authority’s decision and nothing in his circumstances as explained by him seems to put him in a worse predicament than many migration applicants who do manage to lodge their appeals to this Court within time.

23    All of that said, I do take into account that the applicant was unrepresented at all material times and that this case is of enormous consequence for him and his family; it is truly life altering.

24    There is no prejudice to the Minister in time being extended other than the significant public interest in the finality of judicial decisions, as explained in authorities such as Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; 177 ALR 491 at [15]-[17] per McHugh J. However, the mere absence of prejudice to a respondent can never of itself justify the exercise of the discretion sought by the applicant: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; 3 FCR 344 at 349 per Wilcox J.

25    Weighing the above factors, the critical issue for determination of the application for an extension of time is the merits of the proposed appeal. If it has significant merit, then there will be a basis to further consider granting the long extension that is sought. However, if the proposed appeal has no merit then there will be no basis to grant an extension of time.

The merits of the proposed appeal

26    The applicant’s amended draft notice of appeal raises one ground with two particulars, as follows:

The Federal Circuit Court erred in failing to find that the IAA had made a decision that was so unreasonable that no reasonable person would have made it.

Particulars

a)     The court below erred by not finding that the IAA had failed to inquire further into the appellant’s heart condition and the available care for a person suffering from such a heart condition in Lebanon.

b)     The court below erred by not finding that the IAA had failed to provide an intelligible reason as to why it did not exercise its discretion pursuant to sections 473DC and 473DD of the Migration Act 1958 (Cth) to allow the appellant an opportunity to lead further evidence regarding his heart condition and the available care for a person suffering from such a heart condition in Lebanon.

27    Before addressing each particular, it is convenient to identify the relevant evidence.

The evidence

28    The Authority had before it, amongst other material, a recording of the applicant’s interview by the delegate and the delegate’s decision.

29    In the interview, the applicant said that he has personal health issues and that he was attending specialists in Australia in relation to his heart. He also offered the delegate proof from a doctor or specialist if it was required. He said that he would not get the quality of healthcare in Lebanon that he enjoys in Australia.

30    The delegate responded by asking the applicant to tell them about his heart condition. The applicant said that he has a weak or fast beating heart. He said that he was on “continuous medication” which he identified as Metoprolol.

31    Later in the interview, in answer to the question what he thinks would happen to him if he went back to Lebanon, amongst other things he said: “My life is not there, there is no life. By life I mean there is no health, there is no education …”.

32    Towards the end of the interview, the applicant asked the delegate whether the delegate had “enough”, whether the applicant had satisfied the delegate’s questions, and whether the delegate required anything more from him. The delegate responded by assuring the applicant that he should have every opportunity to say whatever he wanted or needed to say.

33    As mentioned, in their decision the delegate recorded that the applicant had raised that he has a chronic heart problem and requires medical treatment. The delegate accepted that evidence including that he requires specialist consultations and ongoing medication, namely Metoprolol.

34    The delegate went on to note that the applicant had not provided any evidence from his treatment providers as to what his diagnosis is and what his recommended treatment plan is. Further, the delegate noted that there was no evidence to indicate that the applicant will be denied medication or access to healthcare in Lebanon. The delegate went on to consider country information available at that time as to the provision and availability of health care in Lebanon on.

35    Ultimately, the delegate accepted that there may be some difficulty accessing healthcare in Lebanon due to availability and cost, but did not consider that the applicant would be intentionally denied healthcare access in a way that would be regarded as cruel or inhuman or degrading in nature. The delegate stated that they were unable to find information regarding whether the applicant would be able to obtain Metoprolol specifically, but said that it appears that most chronic health medications including for cardiac related illnesses are available and can be provided free of charge.

36    The Authority recorded the applicant’s claims with regard to his health and that “there is no healthcare in Lebanon.” The Authority then made findings on the applicant’s claims as follows:

DFAT reports Lebanon’s health facilities have historically been considered adequate, but that they are under strain. DFAT also reports that healthcare in Akkar is under-serviced and in need of institutional support. There is nothing before me however to indicate, and nor was it claimed, that the applicant would be denied healthcare in an act that was intentionally inflicted. The definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment all include an element of intention. I am not satisfied that a health system under strain is evidence of an intention to inflict any of the significant harms defined in s 5 on the applicant. Nor is there evidence that health care would be withheld from the applicant such as to amount to a real risk he will be arbitrarily deprived of life. The consequences of scarce medical resources do not fall within the concept of arbitrary deprivation of life. I acknowledge the applicant may currently be receiving better healthcare than he would in Lebanon, but ‘significant harm’ as defined in s 36(2A) does not include a right to access a certain standard of health care.

(Reference omitted, and emphasis added.)

37    The sentences that I have emphasised with italics record particularly pertinent factual findings adverse to the applicant’s case which I will refer to again in what follows.

Failure to inquire

38    The applicant complains that despite accepting that he was being treated for a chronic, clinically significant heart condition, neither the delegate nor the Authority inquired:

a.     of any further complications which could occur if the appellant withdraws from the drug;

b.     of any long term prognosis with respect to his condition;

c.     of any need for long term care;

d.     of the price or availability of this medication in Lebanon;

e.     of the price and availability of physicians qualified to give care for the condition in Lebanon.

39    There are a number of difficulties with these complaints.

40    First, any duty on the Authority to make any inquiries or get new information is governed by s 473DC of the Migration Act. That section provides that the Authority does not have a duty to get, request or accept any new information (s 473DC(2)). It may, however, get new information that was not before the Minister (or the Minister’s delegate) and which it considers may be relevant (s 473DC(1)). But, it must not consider any new information unless it is satisfied that there are exceptional circumstances to justify considering the new information, and the applicant satisfies it that the new information was not, and could not, have been provided to the Minister before the decision under review was made, or that it is credible personal information which was not previously known and, had it been known, it may have affected the consideration of the applicant’s claims (s 473DD).

41    Secondly, the applicant relies on Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ where it was said that it may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review which could give rise to jurisdictional error by constructive failure to exercise jurisdiction. However, that was said in the context of a Pt 7 review, not in the context of Pt 7AA. Also, in DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222; 267 FCR 69 at [72], the Full Court (Collier, Middleton and Rangiah JJ) said that it is questionable whether there is a duty imposed by Pt 7AA as identified in SZIAI in relation to Pt 7.

42    Thirdly, it is not for the Authority to gather information to support an applicant’s claims, or to make inquiries, or to make out an applicant’s case for them. In Abebe v The Commonwealth of Australia [1999] HCA 14; 197 CLR 510 at [187] per Gummow and Hayne JJ, with whom Gaudron and Kirby JJ relevantly agreed, it was said that it is for the applicant to advance whatever evidence or argument they wish to advance in support of their contention that they have a well-founded fear of persecution for a Convention reason and that the Tribunal must then decide whether the claim is made out. Although that observation was not in the context of Pt 7AA, it has been held to apply to the Authority exercising fast-track review powers under Pt 7AA: AQF17 v Minister for Immigration and Border Protection [2018] FCA 966 at [53] per Farrell J.

43    Fourthly, because of the findings of the Authority identified at [36] above, the first three of the inquiries identified by the applicant which he says should have been made as set out at [38] above are irrelevant. That is because even if there had been further inquiries on those matters, which concern the applicant’s personal medical condition and treatment requirements, and answers favourable to the applicant’s case had been given, the Authority’s findings that the applicant would not likely be deprived of healthcare in Lebanon remained. There would simply remain no basis to find that the applicant would suffer significant harm as contemplated by s 36(2A)(a) if he were removed to Lebanon.

44    As to the remaining inquiries, which concern the availability to the applicant of medication and medical care if he was removed to Lebanon, the delegate made inquiries in the form of consideration of available country information and the Authority had that information available to it. The delegate found, as identified at [35] above, that although they were unable to find information regarding whether the applicant would be able to obtain Metoprolol specifically, it appeared (from, I infer, the country information referred to by the delegate in the preceding paragraphs) that most chronic health medications including for cardiac related illnesses are available and can be provided free of charge. That is to say, the delegate found that at the relevant time the inadequacy of healthcare services in Lebanon was not such as to prevent the applicant from having access to necessary care for his cardiac condition. In its review of the delegate’s decision, the Authority effectively came to the same conclusion.

45    Not only are the decisions of the delegate and the Authority apparently based on country information available to them, but the applicant has adduced no evidence to show that had the inquiries that he says should have been made been made, different information would have come to light which might realistically have resulted in a different decision. Therefore, even on the assumption that the Authority was under a duty to make further inquiries and that its failure to do so constituted error, such error was not jurisdictional error because it was not material in the sense required by the authorities. See Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [31] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45] per Bell, Gageler and Keane JJ. The onus of proving by admissible evidence on the balance of probabilities facts necessary to satisfy the court that the decision could realistically have been different had the breach not occurred lies on the applicant: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [60] per Kiefel CJ, Gageler, Keane and Gleeson JJ.

46    In the circumstances, the proposed ground of appeal with reference to the first particular would fail.

Opportunity to lead further evidence

47    This particular has its underlying premise that the Authority was obliged to consider whether to get new information from the applicant with regard to his heart condition and the available care for a person suffering from such a heart condition in Lebanon. In support of that premise, the applicant relies on Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475, in particular at [82] (per Robertson, Murphy and Kerr JJ) where it was concluded that it was legally unreasonable, in the circumstances of that case, not to consider getting documents or information from the visa applicant. It was reasoned that the legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably, and that the failure to consider the exercise of that discretionary power in that case lacked an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on the particular point in question that was critical to its decision.

48    As emphasised in CRY16, and in subsequent cases (e.g., FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29 at [59(c)] per Bromberg, Davies and O’Bryan JJ), whether or not it will be legally unreasonable for the Authority to make a finding adverse to the applicant without exercising its powers to seek further information from the applicant will depend upon the particular facts and circumstances of the case in question.

49    The present case is markedly different from CRY16. In the latter case the relevant point in issue was whether or not it was reasonable for the applicant to relocate to a different part of his home country where that possibility had never been put to him and he had never had the opportunity to address it. In the present case, the applicant raised the two points in question, namely his heart condition and the availability of treatment for such a condition in Lebanon, and addressed those points in his interview with the delegate. That information was available to the Authority. First the delegate and then the Authority relied on country information available to it to conclude that the applicant would likely have adequate medical treatment available to him for his heart condition in Lebanon. There is no basis upon which it might be said that it was unreasonable for the Authority not to have sought further information from him when (1) he knew that that was a point being considered by the Authority and he had addressed the Authority on it and (2) the Authority had material available to it which it considered to be sufficient.

50    In any event, as with the first particular, there is no evidence to suggest that had the Authority sought further information from the applicant on the question of what treatment would be available to him if he was removed to Lebanon he would have been able to furnish any information which might realistically have led to a different conclusion.

51    In the circumstances, the prospective ground of appeal must fail also in its reliance on the second particular.

Conclusion

52    For the above reasons, the applicant’s proposed ground of appeal has little if any prospects of success. In those circumstances, there is no justification for an extension of time or to admit further evidence on appeal.

53    In view of my reasoning with regard to why the prospective ground of appeal must fail, it has not been necessary to address the submissions put to me on the question of whether the inadequacy of medical treatment for a chronic medical condition in the receiving country could amount to substantial harm within the meaning of s 36(2A)(a) of the Migration Act. Nothing I have said above is intended to say anything on that question.

54    The parties were agreed that the costs should follow the event.

55    I should add that the series of decisions against the applicant, resting now with this judgment, concerns the state of health care in Lebanon in 2018 when the delegate and then the Authority considered the applicant’s TPV application. I acknowledge that the present situation in Lebanon may be very different, but that is not relevant to the decision that has to be made.

56    I also acknowledge the assistance of pro bono counsel who appeared for the applicant. As I have said before, such service is a great credit to the Bar and of great assistance to the Court in its responsibility to “do right to all manner of people according to law” (Federal Court of Australia Act 1976 (Cth), s 11).

Associate:

Dated:    2 November 2021