Federal Court. Given the Tribunal's extensive references to the Applicant's drug addiction throughout its reasons, can it realistically be supposed that the Tribunal overlooked that addiction in concluding generally that he was "apparently in good health" for the purpose of cl 9.2(1)(a) of Direction 90?
The Tribunal affirmed a decision of a delegate to refuse under s 501CA(4) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant's visa.
The Tribunal was bound to comply with Direction 90, cl 9.2(1)(a) of which provided as follows:
(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;
Ground 1 of the judicial review application to the Federal Court (FCA) was expressed as "a constructive failure to exercise jurisdiction by the second respondent" and particularised as follows:
(a) In the context of considering the primary consideration of the protection of the Australian community, the second respondent found the applicant had a serious and sustained drug addiction problem:
i. the applicant has been a heavy drug user for most of the last 16 years ([5])
ii. the applicant had no concrete arrangements regarding post-release treatment or rehabilitation for his addiction ([61])
iii. the applicant has a serious drug addiction problem ([103])
iv. there is nothing in the applicant’s history to suggest that he has the capacity to remain drug-free ([108])
v. there is nothing in his history to inspire confidence that the applicant can escape from the drug-taking habits of almost his entire adult life ([108])
vi. to believe that the applicant can stay away from the drug scene if released into the community would be a triumph of hope over experience ([108])
vii. as the applicant presents a significant risk of returning to substance abuse, he is a significant risk of reoffending ([109).
(b) In the context of considering the other consideration of the extent of impediments if removed from Australia, the second respondent was mandatorily required to consider the applicant’s health under paragraph 9.2(1)(a) of Direction 90.
(c) The second respondent failed to consider the applicant’s serious health issues related to drug addiction and the necessity for drug rehabilitation.
(d) When considering paragraph 9.2(1)(a) of Direction 90 (i.e. the applicant’s age and health), the second respondent merely found that:
i. the applicant is 37 years of age and apparently in good health ([133]).
(e) The second respondent was content to hold the applicant’s health issues concerning unresolved serious drug addiction against him when considering the protection of the Australian community primary consideration, but those health issues were forgotten when it came to considering the other consideration of the extent of impediments if removed: LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1039 [27].
(f) Moreover, regardless of what the applicant claimed, an unarticulated claim might “clearly emerge” before a decision-maker from their own findings and the material before them upon which the findings are reached: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 [26]. The applicant repeats the particulars in paragraph [1](e) above.
(g) The second respondent’s non-compliance was material. Lawful compliance could realistically have led the second respondent to attribute greater weight to the other consideration of the extent of impediments if removed. Subsequently, when the second respondent came to undertake the ultimate balancing exercise at [149]-[155], a different conclusion could have been reached in the broad exercise of discretion.
The FCA answered that question as follows: