Ground one
51 This ground of review alleges that the Tribunal erred by failing to comply with para 9.2(1)(a) of the Direction in so far as that sub-paragraph required the Tribunal to take into account the applicant's "age and health" when considering the extent of any impediments that he may face in establishing himself and maintaining basic living standards if removed from Australia to New Zealand.
52 The applicant contends that there was evidence before the Tribunal that clearly raised his abuse of drugs and alcohol as issues affecting his health. He submitted that the Tribunal failed to refer to those health issues in the context of its consideration of the impediments that he may face if removed from Australia for the purposes of para 9.2(1)(a) of the Direction, and that the Tribunal's failure was a material error that could have affected the weight that it attributed to this consideration.
53 In support of this ground, the applicant submitted that it was apparent from the material and evidence before the Tribunal that he had ongoing health issues in relation to alcohol abuse and drug addiction that required medical treatment and supervision. This included the following evidence at the Tribunal hearing.
(a) In response to questions from the Tribunal, the applicant summarised his past involvement with alcohol and drugs. The applicant said that he had "tried nearly all of them but the main demon of them is actually drink and ice", and that his drinking "ended up being a lifelong obsession … from an early age". The applicant said that there were times when he was heavily using "ice", but that he had not done so for several years. He told the Tribunal: "yes I do have a drinking problem and I am a drug addict", but denied that he still had that problem and said that he had been "sober and clean" while he was in detention.
(b) The Tribunal asked the applicant a series of questions that focused on his "issues with substances". The applicant accepted that most, if not all, of his offending had occurred while he had been affected by alcohol or drugs. The Tribunal asked the applicant what assurance he could give that he would not start abusing alcohol or drugs if he were to be released into the community. This led to the exchange in which the applicant agreed that he was in the process of overcoming his addictions, and that this remained a "work in progress".
(c) The Tribunal proceeded to explore with the applicant the nature of his substance abuse issues:
SENIOR MEMBER TAVOULARIS: Okay. Final question. Once again I go back to your issues with drugs. More alcohol but drugs as well and let's collectively refer to those issues as substance issues. Substance abuse issues, right? I'm going to state the obvious. You've got a problem. Agree?
MR BELMONT: Yes. I agree 100 per cent.
SENIOR MEMBER TAVOULARIS: Okay and it is maybe both or one - a psychological problem or a medical problem, a physical problem. So it's a problem?
MR BELMONT: Yes.
SENIOR MEMBER TAVOULARIS: And to fix those sorts of psych problems or health problem, medical physical problems you need an outside expert?
MR BELMONT: Yes.
SENIOR MEMBER TAVOULARIS: That's usually called obviously a medical doctor or a psychologist?
MR BELMONT: Yes.
SENIOR MEMBER TAVOULARIS: Do you agree that the extent of your past difficulty with drugs and alcohol really needs you to be under the care of that sort of clinical expert?
MR BELMONT: Yes and I did a psychologist report and I do have a doctor there and I've been working with this for 18 months since I've been in detention and it's what we've been working towards.
SENIOR MEMBER TAVOULARIS: But you agree don't you?
MR BELMONT: I do.
SENIOR MEMBER TAVOULARIS: That your problems are severe enough?
MR BELMONT: They are.
SENIOR MEMBER TAVOULARIS: And I'm not a doctor, but your problems with alcohol and substance abuse is severe enough or are severe enough to require a doctor for example to prescribe drugs to you to put you off going to alcohol, going to drugs, if there is such a drug, if there is such a medication that you could take. You need that, don't you surely?
MR BELMONT: Yes, I do.
(Emphasis added.)
54 As is apparent from the Reasons, the Tribunal appears to have explored these issues primarily in the context and for the purposes of its assessment of the likelihood of the applicant engaging in further criminal or other serious conduct. Thus, the Tribunal noted that the applicant had raised his substance abuse issues as a "very significant predispositive element behind his offending conduct": Reasons at [50], [57]. The Tribunal noted the applicant's concession that his recovery from alcohol and drug addiction was a "work in progress": Reasons at [59]-[60]. The Tribunal then relied on the applicant's concessions from the exchange set out above, namely that "those types of issues require the intervention of an outside clinical expert" and that "his past difficulties with illicit drugs and alcohol have been severe enough such as to now give rise to a requirement that he be under the care of a suitably [sic] clinical expert" (emphasis added): Reasons at [61].
55 Under the heading "Assessment of recidivist risk", the Tribunal relied on four factors as "being informative about the Applicant's current level of recidivist risk": Reasons at [62]. The first of those factors concerned the applicant's acceptance that "a predisposition to abuse either or both alcohol and methylamphetamine has been primarily causative of his past offending", in relation to which the Tribunal commended the applicant -
… for being forthright enough to now accept that his past difficulties with substance abuse have been of such a magnitude that management and control of that symptomatology should be in the hands of a suitably qualified clinical expert who can (1) diagnose relevant predispositive symptoms; (2) suggest and implement a treatment plan such that; (3) the Applicant's prognostic outlook can be known with some measure of certainty.
(Emphasis added.)
56 Nevertheless, the Tribunal had reservations about whether the applicant would "undertake and adhere to the required level of rehabilitative care and management for his substance abuse issues upon his return to the community": Reasons at [63].
57 The applicant's complaint is that, when the Tribunal came to consider "Other consideration (b)" in relation to the extent of any impediments that he may face if removed from Australia to New Zealand, it did not refer to or take into account his substance abuse issues or his need for medical treatment by a "suitably qualified clinical expert" to manage those issues. Instead, the Tribunal referred to the applicant's depression and his reduced learning capacity due to rhythmic stuttering, and found that "apart from these symptoms, the Applicant otherwise appears to be in the prime of his life": Reasons at [151]-[152]. The applicant submitted that para 9.2(1)(a) of the Direction required the Tribunal to take into account his "age and health" when considering the extent of impediments that he may face in establishing himself and maintaining basic living standards in New Zealand, and that his difficulties with substance abuse were clearly raised on the evidence before the Tribunal as a medical problem involving his health.
58 The Minister submitted that the applicant did not make any representation to the Tribunal that his substance abuse issues would constitute or give rise to any impediments for him if removed from Australia, and that he did not raise those issues as being relevant to his health in the context of any such impediments in establishing himself and maintaining basic living standards in New Zealand.
59 The applicant completed a "Personal Circumstances Form" dated 21 April 2022, which contained a section on "Impediments to return" with the following questions on "health information":
Do you have any diagnosed medical or psychological conditions? Yes No
If yes: provide details of the condition/s and explain what treatment you are receiving (for example, any prescription medication or counselling or other professional treatment). Provide evidence from a medical professional to support your claims.
as to my prison reports you can find and see my record and i'm going threw a hard time dealing with depression which i'm addressing now and since i've been inside, more information to come.
…
If you are currently being treated by any doctor/health professional/counsellor, provide details that you want the decision-maker to take into account. You may wish to provide a report regarding your treatment and progress.
yes on going support threw 100 Sugarmill Rd Pinkenba, detention more information to come
(The address of the Brisbane Immigration Detention Centre is 100 Sugarmill Road, Pinkenba QLD.)
60 In the course of oral closing submissions by the Minister's legal representative at the hearing before the Tribunal, Senior Member Tavoularis foreshadowed the findings that ultimately appear in the Reasons at [152]:
SENIOR MEMBER TAVOULARIS: The three subparagraphs in relation under consideration B. First, age and state of health. He's a man in his mid-40s, arguably in the prime of his life. There's no identifiable physical or mental health maladies confronting him. To the extent that there may be, they can be adequately dealt with in New Zealand, which has a broadly similar public health system as is available to him here.
61 These observations followed oral submissions made by the Minister's representative that the applicant's expressed fears about homelessness should not attract any great weight, in the light of his demonstrated ability to obtain and keep employment in Australia while he was on parole. The assertion by the Senior Member that the applicant did not confront any "identifiable physical or mental health maladies" is not easy to reconcile with the emphasis placed by the Tribunal earlier in the hearing on the applicant's "medical problems" requiring treatment by a clinical expert, which was ultimately reflected in findings made by the Tribunal. The Senior Member also stated that, in relation to medical support, the applicant would "have the benefit of those things that are available to other citizens of New Zealand" and that, to the extent that there were impediments arising from "the inevitable shock of … removal to a new country", that could not be dispositive in this matter. The Minister's representative expressed his agreement with the Tribunal's observations. The applicant did not address these issues in his oral reply submissions.
62 Accordingly, the Minister argued that the applicant did not disclose any health conditions in relation to his alcohol and drug addictions in his personal circumstances form, and did not make any claim before the Tribunal that those matters, or any ongoing need for treatment or assistance with his substance abuse issues, would have an adverse impact on his ability to establish himself and maintain basic living standards in New Zealand. In such circumstances, the Minister submitted that the Tribunal did not overlook or fail to deal with such issues when making findings about impediments arising from the applicant's age and health.
63 There are a number of recent decisions of this Court that have considered whether the Tribunal had failed to take into account an applicant's health in connection with substance abuse issues in the context of its consideration of the extent of impediments that he or she may face if removed from Australia. Those cases accept that there may be an obligation to address such matters if they are clearly articulated in the applicant's claims and representations or otherwise clearly arise on the materials before the Tribunal: see eg Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 300 FCR 67 (Ibrahim FC) at [65], [68] (Logan, Rangiah and Markovic JJ).
64 In Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126; 179 ALD 217, the applicant had made submissions before the Tribunal that he had an issue with addiction to drugs and claimed that it was reasonably foreseeable that he would relapse into serious drug misuse if he were to be removed to Canada. The Tribunal found that there was a significant likelihood that Mr Holloway would relapse into drug use. However, in considering the impediments that Mr Holloway may face in his return to Canada, the Tribunal focused on his "present state of health" and thereby "excluded the possibility that [his] history of drug misuse and drug addiction may be brought to account in considering the extent of impediments that he might face in establishing himself and maintaining basic living standards if removed to Canada where he would not have family and social support": at [9]. Thus, the Tribunal found that it was not of the view that the applicant's "age and present state of health represent significant, or insurmountable impediments to his return and resettlement in Canada" (emphasis added).
65 In allowing the application and setting aside the Tribunal's decision, Colvin J held that the Tribunal had failed to give effect to para 9.2(1)(a) of Direction No 90 (which was in similar terms to the Direction in the present case) by adopting "an unduly narrow view of its meaning", so as "to confine the term 'health' to only include currently manifested health issues and difficulties": at [13], [14]. Justice Colvin relevantly said at [12]:
Used in the phrase "age and health", the word health would ordinarily be understood to mean any aspect of a person's physical wellbeing and would include the overall state of a person's fitness and condition, including underlying health issues and ongoing effects of any past injury. Within ordinary parlance, a person's status as having a history of substance abuse, especially where there was evidence from which it may be concluded that there was a real risk of relapse into misuse of substances to such an extent that it would be an impediment to a person being able to establish and maintain basic living standards, is [an] aspect of that person's overall health.
66 His Honour held that Mr Holloway's propensity to relapse into substance abuse was an existing underlying condition that amounted to a "health-related issue", and that the Tribunal erred "in treating Mr Holloway as if his present state of health did not include his propensity to relapse into substance abuse (being a fact that it had found and acted upon elsewhere in its reasons)": at [14]-[15]. In reaching this conclusion, Colvin J rejected a submission advanced by the Minister that the effect of the Tribunal's reasoning was that there was no evidence of any recognised health condition "in the sense that there was no diagnosis of a mental health condition or other pathology that explained the history of drug use in a way that might be considered to form part of [Mr Holloway's] state of health".
67 The decision in Holloway is not on all fours with the present case, in so far as Mr Holloway had made an explicit submission to the Tribunal that his drug addiction and propensity to relapse was a health-related issue for the purposes of para 9.2(1)(a), and the error that was identified by Colvin J involved the Tribunal's misconstruction and misapplication of that paragraph based on its acceptance of the factual foundation of Mr Holloway's submission. Nevertheless, the decision illustrates that a history of drug addiction and substance abuse is capable of raising issues about an applicant's health for the purposes of para 9.2(1)(a) that can be relevant to the impediments that may be faced by him or her if removed to another country. Justice Colvin (at [13]) rejected the approach that had been adopted by the Tribunal in that case, under which:
… a person who presented with no issue or difficulty living in Australia (with available treatment and social support) but who had an underlying health condition that might be exacerbated if the person was removed to another country in a way that may be life threatening or physically debilitating would not be viewed as having an impediment. A person with a past history of mental illness, or a cancer diagnosis of remission or a medical condition of a kind where the person can maintain reasonable health provided they received regular pharmaceutical or other treatment are all examples of health conditions that would be excluded by the Tribunal's approach which only considers the current state of health of a person.
68 In LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1039, Logan J held that the Tribunal had failed to take into account the applicant's health when making its decision to affirm the non-revocation of his visa. The evidence before the Tribunal included a report by a clinical psychologist that the applicant suffered from alcohol dependency disorder that was in "partial remission within a controlled environment": at [14]. As in the present case, the applicant's ability to remain sober in the wider community was considered by the Tribunal in the context of an assessment of his risk of reoffending. However, when dealing with the applicable paragraph of the Ministerial Direction dealing with impediments that the applicant may face if removed from Australia to his home country, the Tribunal referred only to a diagnosed adjustment disorder with the potential to develop into a major depressive disorder, and did not separately address the applicant's alcohol dependency disorder. Justice Logan concluded that the Tribunal had failed to take into account a relevant consideration of the applicant's health as specified in para 14.5 of the applicable Ministerial Direction, in circumstances where "the applicant, from the moment he sought revocation, made reference to his drinking, and by the time of the hearing, that particular reference had matured into an expert diagnosis": at [28] (emphasis added). His Honour stated (at [27]):
Indeed, so important was the subject of the applicant's difficulties with alcohol to its reasoning process in respect of risk, it seems to me that the Tribunal on this occasion, and with all respect, has just forgotten that it was additionally necessary to advert to this health condition separately, as ministerially required, when addressing the requirements of [14.5]. Had the Tribunal addressed this subject, it may well have had to confront the discounting promoted in the reply submission on behalf of the applicant. It might also have had to confront the presence or otherwise of any medical facilities in Ethiopia to provide programs for rehabilitation or treatment of those with alcohol dependency disorder. A fair reading of the reference of the minister's specification of health in his direction is that, necessarily, that reference embraces alcohol dependency disorder.
69 In Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 450, on the other hand, SC Derrington J rejected a submission that the Tribunal failed to consider the applicant's drug addiction and mental health issues when considering the extent of any impediments he may face if removed from Australia to Lebanon. Her Honour noted (at [1]) that a similar issue had arisen in a series of recent proceedings, in each of which:
… the gravamen of the complaint has been that a non-citizen's drug or alcohol use and/or dependency, which contributed to the relevant offending and which was considered relevant to the decision-maker's consideration of the non-citizen's risk of recidivism, was not identified by the decision-maker as an independent, albeit unarticulated, claim that 'clearly emerged' from the decision-maker's own findings and the material on which such findings were based, and which was therefore a mandatory consideration in relation to the extent of any impediments the non-citizen may face if removed from Australia to their home country.
70 On the facts in Ibrahim, the applicant did not represent to the Tribunal that there was any matter affecting his health which would be an impediment to establishing himself in Lebanon or that might hinder his maintenance of basic living standards, and positively disavowed any current health conditions: at [17]. Mr Ibrahim stated in his personal circumstances form that he had "completely stopped taking drugs" and had "overcome this habit". Nor did any claim clearly emerge on the materials before the Tribunal that Mr Ibrahim's health in connection with his drug use may be an impediment on his return to Lebanon. The Tribunal did not make any finding that Mr Ibrahim's drug use or his inability to self-regulate his emotions were matters affecting his health: see at [27]. The materials before the Tribunal did not establish that Mr Ibrahim had an ongoing drug addiction or psychological condition, and there was nothing to suggest that a person such as Mr Ibrahim, who was in generally good health, would be impeded in establishing himself and maintaining basic living standards in Lebanon: at [37]-[38].
71 The decision in Ibrahim at first instance was affirmed on appeal: see Ibrahim FC. The Full Court also drew attention to the absence of any finding by the Tribunal that Mr Ibrahim had an existing drug addiction, and the fact that Mr Ibrahim himself claimed that he had completely stopped taking drugs and had overcome his drug habit: at [59], [75]. In such circumstances, the Court did not consider that the materials before the Tribunal raised any claim of a drug addiction or risk of relapse as a health issue which might cause an impediment to Mr Ibrahim in establishing himself and maintaining basic living standards if removed to Lebanon: see at [59], [74]-[76].
72 A similar ground of review was rejected by SC Derrington J in El Khoueiry v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 247, whose decision was upheld on appeal in El Khoueiry v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 136 (Collier, Rangiah and Downes JJ) (El Khoueiry FC). While the Tribunal found that Mr El Khoueiry had a serious drug addiction that contributed to his criminal conduct, he had not made any specific representation nor presented any medical evidence that this was a health issue that would bear upon the impediments that he would face if removed to Lebanon: El Khoueiry at [40]-[43]; El Khoueiry FC at [46], [48]. Unlike in LRRM, there was no medical or other evidence that Mr El Khoueiry had a specific medical condition such as alcohol dependency disorder, or any other health issues that would result in impediments to his removal. Further, the Court found that the Tribunal had not overlooked Mr El Khoueiry's claim of drug addiction in the context of its consideration of the extent of any impediments that he may face if removed to Lebanon: El Khoueiry at [47]; El Khoueiry FC at [49].
73 This argument was also unsuccessfully raised by the applicant in GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468. Justice Derrington concluded that the applicant in GXXS had not made any express representation or submission that he would suffer any impediments as a result of his unresolved alcohol dependency, and his Honour did not accept that any such claim had clearly emerged from the material before the Tribunal. There was sparse evidence as to the nature and degree of the applicant's present consumption of alcohol or his dependence on it and, in contrast to LRRM, the Tribunal had not made a finding that the applicant's past consumption of alcohol amounted to "anything approaching an 'alcohol dependency' of any sort": at [48]-[52]. Accepting that "a formal diagnosis of a medical condition" was not essential, Derrington J considered (at [95]) that "there must be, at least, evidence of some health-related issue which is of such significance that it might interfere with the applicant's capacity to establish themselves in their home country", and concluded that there was no such evidence in that case.
74 In any event, Derrington J expressed the view in GXXS that it was an error to construe the relevant paragraph of the Ministerial direction "as having the consequence that if some evidence emerges that an applicant has an adverse health condition, is of a certain age, is of a particular culture, or speaks a particular language, the decision-maker is automatically required to undertake an inquiry into the other elements of the clause and then reach some conclusion about it": at [54], [93]. Even if the material raised a health-related issue relating to alcohol addiction, there must be evidence or material to suggest that he may face an impediment in establishing himself and maintaining basic living standards in his home country, including by reference to evidence demonstrating that "there is some qualitative difference between the circumstances in Australia and those in the applicant's home country": at [54]-[64].
75 In Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516, the appellant argued that the Tribunal erred "by overlooking his health condition of alcohol dependency when it came to consider the extent of any impediments he may face if removed to the Solomon Islands, despite having found that he had such a condition (and used that condition against him) when considering risk to the community": at [103]. The Court (Logan, Rangiah and Goodman JJ) rejected the premise of this argument, concluding that the Tribunal had not found that the appellant had a condition of alcohol dependency: at [105], [109]-[110]. The Court also did not accept the appellant's alternative submission that the material before the Tribunal clearly raised an issue whether he had an alcohol dependency that might provide an impediment to establishing himself and maintaining basic living standards in the Solomon Islands: at [111]-[116]. While accepting the observations made by Colvin J in Holloway at [12] that a person's status as having a history of substance abuse may be an aspect of that person's overall health, the Court stated at [113]:
That proposition may be accepted as generally true, but whether evidence of a history of substance abuse clearly raises an issue as to whether a person has a health condition and whether it may pose an impediment to their ability to establish and maintain basic living standards is very much a factual question which depends upon the content of the material before the decision-maker. The answer may turn on matters including any information about the nature and extent of the "substance abuse" problem, whether it presently exists and if not, the risk of relapse.
The appellant in Manebona was ultimately successful on a different ground that the Tribunal had denied him procedural fairness in the way in which it dealt with the evidence of his former partner, who was the victim of his past offending.
76 Shortly after the hearing in the present case, Markovic J dismissed a similar ground of review in Pewhairangi v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1322. Her Honour distinguished the decision in LRRM, and found that no claim had clearly emerged on the material before the Tribunal "to the effect that Mr Pewhairangi's drug, alcohol and gambling disorders and/or his depression and anxiety were health conditions to be considered as an aspect of impediments to his removal": at [82]. There was no medical or other evidence that Mr Pewhairangi had any diagnosed medical condition, and he had not raised the alcohol and gambling issues as an impediment to his removal to New Zealand. This was despite there having been a "psychosocial assessment report" prepared for sentencing proceedings which discussed Mr Pewhairangi's drug and alcohol use and gambling addiction and expressed the view that he had an "alcohol use disorder and gambling disorder" as defined by DSM-5 (the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition): see at [50(1)]. Nevertheless, Mr Pewhairangi had stated in his personal circumstances form that he did not have any medical or psychological conditions and, in contrast to LRMM, he had not subsequently qualified or changed this response by reference to any medical evidence. In so far as Mr Pewhairangi had claimed that being around members of his family in New Zealand who abused drugs and alcohol would not be the best environment for him and might cause him to relapse, the Tribunal had addressed that claim by noting the evidence regarding "some anti-social characteristics of his family in New Zealand" (at [72]).
77 The issue was considered by O'Bryan J in another decision handed down after the hearing in the present case, Nkani v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1410. The Full Court recently dismissed an appeal from this decision: Nkani v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 70 (Snaden, Downes and McEvoy JJ) (Nkani FC). The Tribunal made findings about Mr Nkani's history of drug and alcohol use in the context of its consideration of the protection of the Australian community and the risk of reoffending, but did not address whether he had a health issue associated with that drug and alcohol use that would be an impediment to establishing himself and maintaining basic living standards if he was removed from Australia to Zimbabwe. Mr Nkani had not made any representation to the effect that his use of drugs and alcohol would be an impediment to establishing himself and maintaining basic living standards if removed to Zimbabwe: Nkani at [63]. The Court did not consider that such a claim arose from the material before the Tribunal, and rejected the applicant's submission that "the issue of drug and alcohol addiction as a health issue requiring medication and treatment was 'very much in play' before the Tribunal": Nkani at [83]; Nkani FC at [39], [46]. Drawing a parallel with Manebona, the Full Court stated at [40]:
… evidence or findings which reflect that the appellant misuses alcohol and drugs, has a propensity for poor behaviour or committing crimes while intoxicated and has required rehabilitative intervention does not compel a finding that the appellant has a dependency on alcohol amounting to a "health issue", let alone one that would impede his reintegration in Zimbabwe.
78 Notwithstanding the Tribunal's acceptance that Mr Nkani's use of alcohol and drugs was a factor in his offending and that he had made unsuccessful attempts at rehabilitation, the Tribunal "was unwilling to find, on the evidence before it, that Mr Nkani's use of drugs and alcohol gave rise to a health issue which needed to be addressed in the Tribunal's reasons": Nkani at [73]; Nkani FC at [41]-[44]. The Tribunal made express findings to the effect that "there was no medical diagnosis to support the proposition that Mr Nkani has a clinical diagnosis or dependency on alcohol as distinct from being what he describes as a 'binge drinker' who regularly got 'wasted', and the Tribunal cannot import into Mr Nkani's narrative a finding that he has a health issue which needs to be addressed in the Tribunal's findings": Nkani at [71(f)]. This was not taken to suggest that such a medical diagnosis was required in order to raise the issue: Nkani at [74], [81]. Nevertheless, in circumstances where "[o]ther evidence before the Tribunal indicated that the appellant's use or misuse of drugs and alcohol did not rise to the level of a 'health issue'" (Nkani FC at [41]-[44]), it explained why the Tribunal had not considered whether Mr Nkani's drug and alcohol use would give rise to an impediment if he were removed to Zimbabwe: Nkani at [82]; Nkani FC at [47]. This was "a logical consequence of its earlier finding that no 'health issue' of this kind existed, and thus no relevant health issue arose for consideration under paragraph 9.2(1)(a)": Nkani FC at [47].
79 In RPQB v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1419, Rofe J rejected an argument that the Tribunal erred by failing to consider the applicant's alcohol dependency disorder for the purposes of para 9.2(1)(a) of Direction 90. There was evidence before the Tribunal that the applicant had been diagnosed by a psychiatrist with "alcohol dependence currently in remission in the context of detention", although the psychiatrist had later expressed a view that he was no longer dependent on alcohol (at [74]). However, the applicant relied on his prolonged abstinence from alcohol and gave evidence that he had not used alcohol for some time and had "no intention to drink again" (at [75]). The applicant's prior consumption of alcohol was raised before the Tribunal in the context of the applicant's risk of recidivism and in the context of non-refoulement obligations. In relation to the former, the applicant submitted that he had stopped drinking alcohol and had no intention of drinking alcohol again. In relation to the latter, the applicant's claim was that he would be at risk of persecution for reasons of his past consumption of alcohol in Australia. There was no evidence to indicate that the applicant faced the possibility of relapsing into alcohol use or abuse (at [83]). In such circumstances, Rofe J concluded that the Tribunal was not bound to consider the applicant's past alcohol dependence disorder as a relevant health condition for the purposes of para 9.2(1)(a) of Direction 90: at [84]-[85].
80 Arguments based on an alleged failure by the Tribunal to consider aspects of a non-citizen's health when considering the extent of impediments upon removal have also been rejected on the particular facts in Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 293 FCR 509 at [98]-[112] (Farrell, Moshinsky and Burley JJ), Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 134 at [30]-[50] (Nicholas, Thomas and Downes JJ) and Okoh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 297 FCR 63 at [48]-[67] (Thomas, O'Bryan and McElwaine JJ).
81 On the other hand, such an argument was upheld by Thawley J in WCGD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1419; 180 ALD 355 at [44]-[48] and [52]-[64], in relation to a failure by the Tribunal to have regard to the applicant's depression in its consideration of the extent of impediments on removal for the purposes of an equivalent paragraph of the applicable Ministerial Direction, in circumstances where there was evidence that the applicant was suffering depression and had been prescribed anti-depressant medication, and that a consultant psychologist considered that the applicant "could benefit from remaining under the care of a medical practitioner to treat his depression and provide referrals (if needed)".
82 This survey of previous decisions illustrates that the question of whether or not the Tribunal failed to have regard to a mandatory relevant consideration under para 9.2(1)(a) of the Direction, or whether the Tribunal misunderstood or misinterpreted that paragraph, will ultimately turn on the facts of each case: see eg Ibrahim at [15]; Manebona at [113].
83 As has often been pointed out (see eg Nkani at [69]; Manebona at [95]), para 6 of the Direction requires the decision-maker to take into account the considerations identified in parasa 8 and 9 (the primary and other considerations) of the Direction "where relevant to the decision". There may be scope for the Tribunal to form a view that a specified consideration, or an aspect of a consideration, is not relevant to its decision on the facts of the individual case. Nevertheless, it is now settled that s 501CA(4) of the Migration Act requires the decision-maker to consider the representations made by the former visa holder, and that the obligation can encompass any claims that clearly arise on the materials before the decision-maker: see eg Ibrahim FC at [65], referring to CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 318 at [91] (Katzmann, Charlesworth and Burley JJ).
84 The central question in the present case is 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 to New Zealand. If such a claim was articulated or clearly arose on the materials, the Court must consider whether the Tribunal failed to take the issue into account when considering the applicant's health as required by para 9.2(1)(a), and, if so, whether that failure was material to its decision.
85 In this regard, the question for this Court is not whether the applicant in fact suffers from a health issue that would present an impediment if removed to New Zealand. That is a question of fact within the province of the Tribunal. Rather, the question on judicial review is whether or not a claim was articulated by the applicant or clearly arose on the materials which required consideration by the Tribunal under para 9.2(1)(a) of the Direction. Upon such consideration, the Tribunal would make appropriate findings of fact about the nature and extent of any impediments within the meaning of para 9.2(1)(a) that the applicant may face if removed to New Zealand, and determine the weight to be given to this consideration in relation to the revocation decision.
86 Although previous cases in which similar issues have been addressed may provide guidance as an illustration of the application of principles to particular facts, care should be taken not to treat the outcomes of individual cases as establishing fixed categories that govern or control the case at hand: compare eg CRS20 v Secretary, Department of Home Affairs [2024] FCA 619 at [82] (Wheelahan J), and the discussion therein. Some cases might involve the Tribunal asking the wrong question by misconstruing the terms of para 9.2(1)(a) of the Direction: see eg Holloway. Other cases will involve an analysis of the material before the Tribunal to ascertain whether a health-related issue was clearly raised as a possible impediment that may be faced on removal, and a construction of the Tribunal's reasons to determine whether any such issue was taken into account. For such purposes, it is accepted that drug and alcohol addiction and other substance abuse issues are capable of being regarded as an aspect of a person's health within the meaning of para 9.2(1)(a): Holloway at [12]. Such health issues, including the risk of relapse into drug and alcohol abuse, are capable of presenting impediments within the meaning of para 9.2(1)(a), that is, "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)".
87 In some cases, the presence or absence of a formal diagnosis that the applicant has a medical or psychological condition has been treated as significant in determining whether or not a health-related issue was clearly raised on the materials. However, the existence of a formal diagnosis is not essential in order for such a claim to arise for consideration under para 9.2(1)(a). On the other hand, there may be cases in which applicant seeks to disavow or rebut any drug or alcohol dependency in an effort to demonstrate rehabilitation and to address potential concerns about the risk to the Australian community, or where the Tribunal makes a finding that the applicant's drug or alcohol use in connection with prior offending does not amount to a health issue: see eg Ibrahim, Manebona, Nkani and RPQB. Or it may be sufficiently clear from the Tribunal's reasons that it did not fail to take into account an applicant's drug or alcohol addiction when considering the impediments that may be faced by the applicant if removed to his or her home country: see eg El Khoueiry.
88 In the present case, the salient aspects of the material before the Tribunal were as follows.
(a) The applicant did not disclose in his "Personal Circumstances Form" that he had any diagnosed medical or psychological condition in relation to his substance abuse. He referred only to his difficulties in "dealing with depression" (see [59] above).
(b) In the Tribunal proceedings, the Minister filed a statement of facts, issues and contentions (SOFIC) dated 20 April 2023. In addressing the risk to the Australian community, the Minister's SOFIC referred to the applicant's "alcohol misuse" as one of the factors that underpinned his offending. In the context of the extent of any impediments that the applicant may face if removed, the SOFIC stated that the applicant "appears to have diagnoses of depression and anxiety which result in panic attacks and has historically had a stutter", but did not otherwise refer to any issues concerning the applicant's health. The Minister contended that the applicant would have access to social, medical and economic support systems in New Zealand that were of an equivalent quality to those in Australia, "such that the applicant's health should not be a barrier to his return to New Zealand".
(c) The applicant, who was not legally represented before the Tribunal, provided a brief written submission in the form of a letter to the Tribunal dated 26 April 2023, in which he appealed to the Tribunal to grant him a visa to return to the Australian community. In this submission, the applicant emphasised his family and his rehabilitation efforts, but did not refer to his substance abuse issues.
(d) There was some material before the Tribunal in relation to the applicant's completion of counselling and courses for drug and alcohol abuse.
(e) In the course of the Tribunal hearing, Senior Member Tavoularis questioned the applicant intensively about his substance abuse, in the immediate context of an exploration of the causative factors behind his offending. The Senior Member extracted concessions from the applicant that he was still "in the process of overcoming [his] addictions, that he was "still working at it" and that he was "not there yet". This led to the exchange that is reproduced above at paragraph [53] above in which the Senior Member put to the applicant that he had a "psychological problem or a medical problem" with substance abuse, and that to fix such "psych" or "health" problems he would need to be under the care of a "clinical expert" such as "a medical doctor or a psychologist". The Senior Member put to the applicant that his substance abuse problems were "severe enough to require a doctor for example to prescribe drugs to you to put you off going to alcohol, going to drugs". The applicant readily accepted these propositions when they were put to him by the Senior Member.
(f) The Tribunal relied on this evidence in its Reasons to make findings that the applicant's substance abuse issues were such as to require "management and control" by a "suitably qualified clinical expert". The Tribunal contemplated that the clinical expert (which may be taken to mean a medical doctor or psychologist) would need to "diagnose relevant predispositive symptoms" and "suggest and implement a treatment plan", such "the Applicant's prognostic outlook can be known with some measure of certainty": Reasons at [61]-[62].
89 In these circumstances, I consider that a claim clearly emerged from or arose on the material and evidence before the Tribunal to the effect that the applicant was suffering from a health-related issue involving severe substance addiction which required ongoing medical treatment and supervision in order to address a potential risk of relapse into drug or alcohol abuse in the future. While there was no formal medical diagnosis before the Tribunal, the Tribunal clearly proceeded on the basis that the applicant was suffering from such a medical or psychological problem or condition, and the applicant readily adopted that proposition in the course of his oral evidence.
90 It is true that the applicant did not advance an explicit claim or representation that his drug and alcohol addiction would give rise to any impediments in establishing himself or maintaining basic living standards in New Zealand. Nevertheless, the fact of his medical or psychological condition necessarily entailed a risk of relapse into substance abuse, particularly in the absence of appropriate clinical treatment and supervision, which might impact upon his ability to establish himself and to maintain basic living standards compared with other New Zealand citizens. The Tribunal was required by para 9.2(1)(a) of the Direction to take such matters into account in considering any impediments that the applicant might face if removed from Australia.
91 It is also true that the Tribunal made a finding (at [152]) that the applicant will "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". However, this finding was expressly directed to the availability of treatment or assistance with the symptoms of rhythmic stuttering, and cannot be taken as having addressed the comparative availability of clinical treatment or supervision for the applicant's "severe" substance abuse issues.
92 Separately, in relation to para 9.2(1)(c) of the Direction, which requires the decision-maker to take into account "any social, medical and/or economic support" available to the applicant in his or her home country, the Tribunal found (at [155]) that the applicant would have access to "governmental assistance in the form of publicly available health care and/or social security or welfare benefits to assist with his re-settlement in New Zealand … to the same extent as is generally available to other citizens of that country", and (at [156]) that the applicant "will be entitled to the same level of publicly available … health care as is available to other citizens of New Zealand". Again, however, these findings were not directed to the availability of health care for substance abuse issues, and the Tribunal did not make any finding about the extent of such health care for New Zealand citizens or its comparability to the health care system in Australia.
93 Accordingly, I find that the Tribunal erred by failing to have regard to a mandatory relevant consideration under para 9.2(1)(a) of the Direction, namely whether the applicant may face impediments if removed to New Zealand as a consequence of his medical or psychological condition relating to substance abuse and addiction.
94 The Minister submitted that, if the Tribunal erred in its consideration of para 9.2(1)(a) of the Direction, any such error was not material to its decision. This submission was primarily based on the Tribunal's findings that the applicant would in any event be able to access support from the public health system in New Zealand and that such support would be comparable to what was available in Australia. As noted above, those particular findings were not addressed to the particular health issues raised by the applicant's substance abuse and addiction, and therefore do not demonstrate that there was no realistic possibility of a different outcome had the Tribunal properly considered those issues.
95 More generally, I am satisfied that the Tribunal's error was material to its decision. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610, the High Court recently considered whether a failure to comply with a Ministerial direction under s 499(2A) was material to an exercise of power conferred by s 501CA(4) of the Migration Act not to revoke a cancellation decision. The plurality (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) emphasised at [15] that "a court called upon to determine whether the threshold [of materiality] has been met must be careful not to assume the function of the decision-maker" (compare Beech-Jones J at [49]). As the plurality stated at [29], "[a] reviewing court does not engage in a review of the merits of the decision, reconstruct a decision making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision". Accordingly, in the particular context of an exercise of power under s 501CA(4) involving the process of evaluation called for by the applicable Ministerial Direction, the court on judicial review cannot make "assumptions about how the Tribunal would have undertaken the weighing exercise" under the direction. The threshold of materiality is met if "there is a possibility, not fanciful or improbable, that the decision that was made in fact could have been different if the error had not occurred": at [36].
96 In circumstances where the Tribunal's failure to take into account the applicant's health-related issues under para 9.2(1)(a) might have affected the weight that it accorded to that consideration in deciding whether there was another reason to revoke the cancellation of the applicant's Special Category visa, I am satisfied that there was a realistic possibility that the Tribunal's evaluative conclusion could have been different if there had been no error. The Tribunal gave "other consideration (b)" under para 9.2 of the Direction "a slight but not determinative level of weight" in favour of the revocation of the cancellation decision. The possibility is not fanciful or remote that the Tribunal might have given a greater level of weight to this consideration if it had taken into account the impediments that may be faced by the applicant in New Zealand as a consequence of his health-related issues in connection with substance abuse. In turn, 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.
97 For these reasons, I uphold ground 1.