Franco-Buitrago v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This proceeding comes before the Court pursuant to an order of the High Court (McHugh J) dated 26 April 2000. The proceeding was remitted by his Honour for this Court to determine the question whether there "was an error of law [by the Refugee Review Tribunal ("the RRT")] in relation to the application of the law to the facts as it relates to [internal] relocation" and whether that "error of law was so serious that it amounted to a constructive failure to exercise jurisdiction". The applicant had sought an order nisi on four grounds and it was only on ground (b) which is quoted above that the proceeding was remitted to this Court for determination. 2 The applicant, Luis Fernando Franco-Buitrago, is a national of Colombia who seeks, together with his wife and five year old child, a protection visa on the basis that he is a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"). The matter comes before this Court by way of an Application for review of a decision by the Refugee Review Tribunal ("the RRT") pursuant to s 476 of the Migration Act 1958 ('the Act"). 3 The central question raised on this review application is whether the RRT erred in concluding that it is reasonable to expect the applicant and his family to relocate and live elsewhere in Colombia and avoid the harm they fear. 4 The decision-maker accepted that the applicant had a subjective fear of persecution and a fear of future harm which could amount to persecution. He said in his reasons: "In my view it is entirely possible that the agents of harm have no further interest in the applicants. However, for present purposes I accept that there is more than a remote possibility that the agents of harm could continue to hold an interest in the applicants. I am also willing to accept, for present purposes, that the threats they have experienced and fear in the future is harm which might be capable of amounting to persecution. However on the applicants' own evidence they have successfully relocated elsewhere in Colombia and had no further difficulties." 5 From this extract it is apparent that the decision-maker proceeded on the basis that the issue for determination was the ability of the applicant to relocate elsewhere in Colombia so as to be free from any reasonable fear of persecution. 6 There was evidence before the RRT as to state of health of the applicant's son ("Juan"), who was born on 6 December 1995, to the effect that Juan suffers from a severe blood disease known as Idiopathic Thrombosytopénic Púrpra ("ITP"). There was medical evidence to the effect that if Juan was to develop mucosal bleeding he would require an urgent platelet count and admission to hospital for treatment with intravenous immunoglobulin. This condition is confirmed in a report from the Sydney Children's Hospital of 22 May 1998. A second report in evidence from the Sydney Children's Hospital dated 21 January 1999 confirmed that the chronic ITP was continuing and that Juan's platelet count had been low but that there had been no history of bleeding or bruising in the previous six months. The report records that the child's height and weight were adequate for his age. A further report of Dr R Skvirsky confirmed that, as at 12 April 1999, the son continued to suffer from ITP and pointed out that he was under specialist treatment at Sydney Children's Hospital and was currently in a good state of health. The application to the RRT was heard on 26 October 1999. 7 In a letter 13 April 1999, six months before the hearing, Mr Buitrago wrote to the RRT in the following terms: "… But when I first stated my case, I left out, without mentioning, an important element: the delicate health condition of our three-year-old son Juan Camilo Franco. I did not raised the issue because at that time, I erroneously believed that of I talked about my son's medical condition, it would became a matter that would further complicate our case. However, I have decided to include my son's medical condition now, with letters from the doctors, for your consideration. My son Juan Camilo is suffering a rare illness, and when we were living in Colombia, it was never treated by the Colombian doctors in any effective way. My son is suffering from chronic "Idiopathic Thrombosytopénic Púrpra" which affects his blood. It is a desease which originate in his bone marrow. The answers we receive from Colombian doctors, regarding treatment and survival possibilities, were negative. He was prescribed a drug that has been cutted by the australian specialists who are treating him. My son now in under control and treatment by doctors from the 'Sydney Children Hospital, Randwick'. I attached letters from Dr. Regina Skvirsky and Dr. Susan Russell, a specialist Haematologist-Oncologist. I include papers from my son's medical file. The doctors think that, if my son's treatment is changed or discontinued, as a consecuence of us leaving Australia, that could put his health at risk." 8 This letter specifically raises the question of Juan's health and asks that it be taken into account by the RRT when a decision is made. 9 In considering the application of Mr Buitrago the decision-maker said: "The applicant provided a number of documents in Spanish together with English translations verifying his employment and union membership, as well as documents attesting to his good character and information about his son's medical condition. In a covering letter sent with the documents about his son's medical condition the applicant stated that advice received from Colombian doctors "regarding treatment and survival possibilities [for his son] were negative". He added that his son's current doctors believed that his son's health could be put at risk if his treatment were changed or discontinued, as a consequence of leaving Australia. I note that these are not matters which are relevant to the determination of refugee status." (Emphasis added) 10 This quotation makes it apparent that the decision-maker excluded from consideration matters relating to the "treatment and survival possibilities" for Juan and the risks to Juan if his treatment were changed or discontinued as a consequence of leaving Australia, as being irrelevant to the claim for refugee status. 11 The only other reference in the reasons for decision to the circumstances of the child is in the penultimate paragraph of the RRT reasons which reads: "Apart from those matters referred to above no specific Convention claims were made by or on behalf of the applicant child. There is no basis on which the Tribunal can be satisfied that he is a refugee. The fate of his application therefore depends on the outcome of his parents' applications. As I have found they do not satisfy the criteria for a protection visa, it follows that their child cannot be granted a protection visa."