Federal Court. In circumstances where the Tribunal accepted that the applicant was suffering from a medical or psychological condition in relation to substance abuse and addiction that required clinical treatment and supervision, did it fail to complete the exercise of its jurisdiction, as para 9.2(1)(a) of Direction 99 require it to consider the applicant’s health issues relating to alcohol abuse and drug addiction, which it failed to do?
Para 8.1.1(1)(c) of Direction 99 provided:
(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
...
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
Paragraph 8.1.2 of Direction 99 provided:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the non-citizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c) where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Paragraph 9.2(1)(a) of Direction 99 provided:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
...
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: In determining whether the Tribunal failed to complete the exercise of its jurisdiction, is the central question whether "a claim was articulated by the applicant or clearly arose on the materials before the Tribunal to the effect that, for the purposes of para 9.2(1)(a) of the Direction, the applicant’s drug and alcohol addictions were a health-related issue that would be relevant to the impediments that he may face in establishing himself and maintaining basic living standards if removed" from Australia?
Question 2: If the answer to Question 1 is 'yes', is the question for the Court whether the applicant in fact suffers from a health issue that would present an impediment if removed from Australia?
Question 3: Is the existence of a formal diagnosis essential in order for such a claim to arise for consideration under para 9.2(1)(a)?
Question 4: In circumstances where the Tribunal accepted that the applicant was suffering from a medical or psychological condition in relation to substance abuse and addiction that required clinical treatment and supervision, did it fail to complete the exercise of its jurisdiction, as para 9.2(1)(a) of Direction 99 require it to consider the applicant’s health issues relating to alcohol abuse and drug addiction, which it failed to do?
Question 5: The Tribunal found that the applicant would “be able to access such support from New Zealand’s public health care system which would not be starkly different to what would be available to him in Australia”. Was that finding expressly directed to the availability of treatment or assistance with the symptoms of rhythmic stuttering, with the result that it cannot be taken as having addressed the comparative availability of clinical treatment or supervision for the applicant’s “severe” substance abuse issues?
Question 6: If the answer to Question 4 is 'yes', can it be said that, "notwithstanding the heavy weight against revocation that was given to several primary considerations, there is a realistic possibility that the Tribunal’s “holistic view” and ultimate conclusion on the combined weights of the primary and other considerations could have been different"?
Question 7: In Au, the Full Court held that the Tribunal made an error by treating s 501CA(4) as involving a discretion, instead of the test of whether there was "another reason" to revoke a visa cancellation. Is the present case distinguishable from Au, in that in Au it was clear that the Tribunal “did not address the correct question in any way” and “simply did not attempt to engage with the statutory task”, whereas the the Tribunal’s reasons here indicate that it was quite aware of the statutory conditions on the power conferred by s 501CA(4)?
Question 8: Can it be said that "the Tribunal erred in finding that para 8.1.1(1)(c) of the Direction precluded it from taking into account the sentences imposed upon the applicant for offences involving crimes of a violent nature against women and acts of family violence, when para 8.1.1(1)(c) merely directs the Tribunal as to what are mandatory considerations that it is bound to consider and therefore does not forbid or preclude it from taking into account all the criminal sentences imposed on the applicant"?
The FCA answered those questions as follows: