Federal Court. Would the word "health" in para 9.2(1)(a) of Direction 90 "ordinarily be understood to mean any aspect of a person's physical wellbeing"? Did the Tribunal err by confining the term 'health' in para 9.2(1)(a) of Direction 90 to only include currently manifested health issues and difficulties?
Paragraph 9.2(1) of Direction 90 provided as follows:
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;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The applicant's representative submitted as follows to the Tribunal:
It is reasonably foreseeable that the Applicant would relapse into serious drug misuse were he to be removed to Canada due to the stress, devastation and hopelessness he would feel at being returned to a country where he would be separated from his family, where he had limited social supports and where he has only bad, if not traumatic, childhood memories … Any serious drug misuse would affect the Applicant's health and impact on his ability to establish himself to a basic standard of living.
The Tribunal reasoned as follows (original emphasis):
To my mind, the terms of this particular sub-paragraph 9.2(1)(a) should not be construed on the basis of what might go wrong, or what could be reasonably foreseen to go wrong with an Applicant's health in the event of a removal. It is, I think, intended to operate on the here and now. That is, it asks the question: 'what health issue(s) does this Applicant suffer from and how does that current health difficulty/difficulties act as an impediment to that person's re-establishment in the intended country of removal?'
I am thus not of the view that this Applicant's age and present state of health represent significant, or insurmountable impediments to his return and resettlement in Canada.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Would the word "health" in para 9.2(1)(a) of Direction 90 "ordinarily be understood to mean any aspect of a person's physical wellbeing"?
Question 2: Would the word "health" in para 9.2(1)(a) of Direction 90 "include the overall state of a person's fitness and condition, including underlying health issues and ongoing effects of any past injury"?
Question 3: Is a person's status as having a history of substance abuse an aspect of that person's overall health?
Question 4: Did the Tribunal err by confining the term 'health' in para 9.2(1)(a) of Direction 90 to only include currently manifested health issues and difficulties?
Question 5: Are mental illnesses captured by the term "health" in para 9.2(1)(a) of Direction 90?
The FCA answered those questions as follows: