THE CLAIM ISSUE: GROUND 3 OF THE APPLICATION
115 In Ground 3 of the application, the applicant contends that he was denied procedural fairness by the Tribunal as it failed to address his claims that future drug use in the Philippines would lead to him being killed, and that his partner needed him in Australia for emotional and financial support.
116 I will first address the future drug use issue. The applicant notes that the Tribunal recorded the effect of his claim that future drug use by him in the Philippines would lead to him getting shot and killed. At [264] of its reasons, the Tribunal observed:
The Applicant made claims within his submissions to the Department that he would be at risk of the harm, if he were removed to the Philippines, because of the following grounds:
• I probably get shot cause tha Phillipines kill anyone that uses drugs and with mental health they probably tie me up and put me somewhere I couldn't be seen';
• 'They kill people in tha Phillipines with drug history the now President do I don't feel safe at all';
• 'pilipnies is nott a place for me they kill people there with a drug history just like that'; and
• 'I wont breack tha law again i got nobody back in pilipines and make thing worse i probably face the firing squad if i get deported'.
(Footnotes omitted.)
117 Then at [268] the Tribunal quoted from the Minister's submissions which included the following:
[98] The Applicant has made a number of claims in respect of the harm he fears if returned to the Philippines…
[…]
[99] In short, the Applicant's contention appears to be that, because he uses illicit drugs, and because the Philippines has very strict laws about the use of illicit drugs, he will face serious criminal or extra-judicial sanctions if returned to the Philippines.
118 The applicant submits that the Tribunal only recorded the future drug use claim but failed to resolve it, even though it concluded (at [275]) that the evidence before the Tribunal does not support a conclusion that the applicant has a well-founded fear of persecution on the basis of his past drug use.
119 The Minister submits that the Tribunal was not required to resolve any claim relating to future drug use in the Philippines as such a claim was not in fact made by the applicant. At the hearing, counsel for the Minister was asked to consider whether the statement commencing "probably get shot" set out at [116] above amounted to a claim. In response, counsel for the Minister said that this statement ought to be understood as a statement of principle about the treatment of drug users in the Philippines and it ought to be read in the context of the applicant telling the Tribunal that he would not use drugs in the future. The Minister contends that while the applicant has been in prison and immigration detention he has been drug free for a number of years and that the evidence was that his triggers for reverting to drug use were specific to Australia. The Minister also notes that there was no medical evidence before the Tribunal that, given the applicant's prolonged lack of drug use since being placed in immigration detention, he required rehabilitation services absent needing help to address particular triggers in Australia.
120 The Minister points to the following evidence summarised by the Tribunal:
[144] The Applicant agreed that exposure to destabilisers, including drug using peers (such as his girlfriend) was a risk for him, and that was why he wanted to go into rehab for a year. He admitted that he and his girlfriend used to take illicit drugs together. He said she is still using drugs. His children are not close to him.
[...]
[153] The Applicant was referred to the statutory declaration he made on 14 February 2016, in which he stated that he had been through a hard life and declared that since he got his house and girlfriend he wanted to be there for her. He had also declared that he would stop hanging around people that took drugs, and that he knew that drugs triggered his mental health, and was willing to go to rehab if he got the chance. He commented about his girlfriend "She was crazier than others - she needed help more than me". He acknowledged that he continued reoffending after he wrote this statutory declaration, and said that this time he has spent more time in the detention centre and is more mature. He has thought about his life, and knows what is better for everyone.
121 The Minister says that the evidence before the Tribunal was that the applicant's triggers were very fact-specific to Australia and would not apply in the Philippines. The Minister also refers to a report on the applicant from a Queensland prison psychiatrist dated 30 August 2018 that does not refer to any drug use by the applicant.
122 Having regard to the material before the Tribunal, I consider it to be clear that the applicant claimed to be at risk due to future drug use, even if he also stated that it was his intention to get off drugs. This claim was made at the hearing, alluded to in the applicant's submissions to the delegate (which were before the Tribunal), and was even recorded in the Tribunal's reasons. This conclusion is consistent with my earlier findings in respect of the information in the DFAT Report - that is, the fact that the Tribunal had regard to information about the treatment of drug users in the Philippines is consistent with it being on notice of a claim that the applicant would be at risk as a drug user in the Philippines.
123 The issue thus becomes whether the Tribunal failed to resolve the claim such that the applicant was denied procedural fairness. In its reasons (at [269]-[271]), which I have set out above, the Tribunal makes findings on the basis of the evidence before it as to whether or not the applicant would be at risk in the Philippines because of drug use. The Tribunal expressly acknowledged the applicant's "articulated concerns for his safety" but did not find that the applicant would be at risk in Philippines. This part of the analysis of the Tribunal was on the basis that the applicant would fall back into drug use in the Philippines. The Tribunal proceeded at [270] on an assumption that that the applicant would fail in his stated objective to get off drugs, and then found on that basis that there was insufficient evidence that the applicant's drug use would result in risk of harm should he be returned to the Philippines.
124 In these passages, it is clear that the Tribunal both records and resolves the applicant's claim, albeit not in favour of the applicant. It follows that I do not consider the applicant to have been denied procedural fairness in the way now alleged by the applicant.
125 I will now turn to the issue of the applicant's partner.
126 It is said that the applicant advanced a claim that his partner of ten years also has a mental illness and needs him for emotional and financial support. The applicant submits that the Tribunal failed to address this claim at all, even though the Tribunal accepted that there would be significant emotional hardship for the applicant's mother and sister if he were to be removed to the Philippines.
127 The applicant submits that cl 9(1) of Direction 90 makes it plain that in making a decision under s 501CA(4), other considerations must also be taken into account where relevant, and the specified considerations are non-exhaustive. The applicant contends that had the Tribunal had regard to the hardship to partner claim, it was a matter that could have been given weight in the applicant's favour and there was a realistic possibility that the ultimate outcome would have been different.
128 The applicant relies on the statement of Allsop CJ in Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [3]: "[where] decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people". The applicant also refers to other decisions where this Court has found the Tribunal to have committed jurisdictional error on account of a failure by the decision-maker to take into account the adverse practical and emotional consequences for relevant members of the Australian community as a result of a s 501 decision, citing Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 at [31]; Kelekci v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1000 at [39]-[40]; FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [81].
129 In response, the Minister submits that the proposition that the applicant positively contributed to his girlfriend's management of her mental health issues given his own chronic offending and drug use is not credible and is without any medical foundation or corroboration. The Minister submits that the evidence before the Tribunal as to the nature of the relationship demonstrates only that on one occasion the applicant had done the cooking, cleaning and housework for his girlfriend which is not the critical support required by an active drug user.
130 The Minister also says the applicant's argument is inconsistent with the applicant's evidence to the Tribunal about the toxic nature of their relationship, which the Tribunal summarised at [140] as follows:
The Applicant agreed that exposure to destabilisers, including drug using peers (such as his girlfriend) was a risk for him, and that was why he wanted to go into rehab for a year. He admitted that he and his girlfriend used to take illicit drugs together. He said she is still using drugs. His children are not close to him.
131 It is also said to be inconsistent with the fact that the applicant intended, if allowed to remain in Australia, to move to South Australia with his mother and sister: see [248] of the Tribunal's reasons. The Minister contends that, on any view, the applicant's claims in relation to his girlfriend could not have rationally been "another reason" for revoking the cancellation decision and therefore did not need to be considered: citing Minister for Home Affairs v Omar (2019) 272 FCR 589 at [34], [45] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ).
132 At [55] of its reasons, the Tribunal recorded the delegate's summary of the applicant's submission to the delegate, which included "[h]e has been in a de facto relationship with his partner, an Australian citizen, who suffers from schizophrenia, and needs his support, for around 10 years". The effect of this claim was then repeated by the Tribunal at [59].
133 The Tribunal also referred to evidence that was relevant to this claim as follows:
[63] The Applicant acknowledged that he had a drug problem and said he wanted to take responsibility for it. He promised to attend church, stop taking drugs, not to re-offend or breach domestic violence orders again. He was prepared to go to rehabilitation, meetings, and counselling. He expressed a desire to help the homeless and disabled, and to do as much as he could for his baby stepdaughter, caring for his sick girlfriend, and trying get a full-time job. He said that his girlfriend had found a stable home for him, and he could stay with her and look for job to secure his future. He said that he would have a full-time job when he gets out as a carer for his girlfriend.
[…]
[81] Mr PYDZ gave evidence in chief and promised that if he is given a chance to stay in Australia, he will go to rehab, counselling, look after his girlfriend and his mother and children and step daughter. The Applicant told Mrs PYDZ that he would stay away from drugs and his past conduct, and promised that he would be of good behaviour for the community. He will be the carer for his sick girlfriend, and will be a good person.
[…]
[100] Mrs PYDZ said that if the Applicant is released into the community he will live with his girlfriend, and do all the housework. Mrs PYDZ also said that the Applicant's case manager would help him find a place in Queensland. She said that she usually visited Brisbane and stayed with his ex-wife and children and saw him every day. However, she had not been to Queensland since Covid-19 struck.
[…]
[119] The Applicant was also referred to a statutory declaration he made dated 19 June 2007 wherein he stated that he was in the process of trying to obtain work, and that there was nothing stopping him from making a positive contribution to the Australian community if he was provided with a second chance. The Applicant agreed he was given support in 2006-7 to avoid drugs etc, and that despite living with his wife and children and undertaking courses in prison he returned to drug use and offending. He was aware at the time that this might impact on his visa. When asked why this time would be different, he said he was more mature now. He said it would be risky on his release living with his girlfriend, but that he wanted to change.
134 There was some conflicting evidence before the Tribunal as to whether the applicant did in fact intend to live with his partner if he remained in Australia. This was also summarised by the Tribunal as follows:
[140] The Applicant said that if released he would follow his doctors and case workers, and go into rehabilitative. He said that he plans to live with his mother and sister who live together in South Australia, which was different from the evidence both he and his mother gave earlier in the hearing. He was referred to Exhibit A2 where he stated that he was going to live with his girlfriend but said that he and his mother and sister had just decided over the weekend that he would live with them in South Australia. The two moved there in 2014 after a series of protection orders had been taken out. He denied that they had moved to get away from him.
[141] This time would be different if he lived with his mother because he knows she is getting old and he always wanted to be with her and spend time with her. He will get off drugs to make her happy. He had made similar promises in the past but never had proper care back then. When asked what help not previously available to him would be available this time, he said a home, but acknowledged he had a home to go to in 2007. He had previously gone back to drugs and re-offending after living with his family.
[…]
[161] The Applicant was referred to a statement where he had said that he had been with his girlfriend for ten years, when in fact they had only been together about six years, since 2015. He confirmed his statement that she hits herself in the head if she does not get what she wants or offers herself to other men. He confirmed that "She's got the mind of a kid".
[…]
[185] The [applicant's sister] confirmed that the Applicant will live with her and her mother if he is released into the community. She will be his carer, and take action to get him treated. She said he has actually asked for help this time. She proffered that if he reverts to drug use, she will continue to ask for professional help. She expects it will take 3-5 years to rehabilitate him.
[…]
[187] Mr Avriram put to the witness, that prior to last weekend he was planning to live with his girlfriend, and that this plan had changed over the weekend. She denied the plan to live with her and her mother was a brand new plan, as they have been asking him for a long time to come and live with them.
135 The Tribunal also dealt with the evidence as to the applicant's change in plans in respect of his living arrangements. In relation to the risk of re-offending, it held:
[193] In particular in 2007, he had a number of protective factors - he was the father of four children, living with his wife, he had completed courses in prison, had access to support services and family. Today he has almost none of the protective factors. He would not live with his wife or children, who have little contact with him. His initial desire was to live with his girlfriend who has her own history of drugs and violence against him, and appears to need significantly more support than he does. He has previously had support from his mother and sister and has returned to re-offending. The recent change in plans should not be accepted as a protective factor to prevent returning to illicit drug use and offending. He had had the benefit of past support from his mother. Notwithstanding the various protection orders as varied, he repeatedly abused her trust by reverting to drug use. He has shown little insight into his offending and continues to minimise his offending and his responsibility for it, and suggesting he himself was also a victim.
[…]
[198] It was further submitted that the Applicant had changed his plan of action over the weekend and this demonstrated a lack of a clear plan. There is no evidence as to what type of counselling he would undertake. The Tribunal should not be satisfied that he has a protective social environment. There is little evidence of social connections outside his mother, sister and girlfriend. There is no evidence of support from his ex-wife or children. His mother and sister have in the past not been able to stop him from re-offending.
[199] There is no clear evidence of a beneficial impact of re-uniting with his girlfriend.
136 Then, in relation to the likelihood of the applicant having contact with his ex-partner's child, it held (at [248]):
He has had practically no contact with her for the last year and a half, and based on his most recent evidence, if he is released back into the community, he will be moving to South Australia to live with his mother and sister. He is therefore unlikely to have any significant contact with her for at least one further year during which time he has stated he intends to undergo further rehabilitation. His sister told the Tribunal that she thought this could take several years. In the circumstances it appears unlikely that the Applicant would be having any significant contact with the child for a number of years and would therefore not be playing a parental role. The Tribunal nevertheless notes that it would be possible to maintain contact with the child through means such as FaceTime or Zoom. He could employ the same measures from overseas.
137 The Tribunal later concluded, in relation to the other consideration of links to the Australian community (at [281]), that there did not appear to be any impediment to his "friends" or "closest relatives" visiting him in the Philippines. The Tribunal also accepted (at [282]) that there would be "significant emotional hardship" for the applicant's mother and sister if the applicant were deported. There is a notable absence of any reference to the applicant's partner in this analysis. However, when the Tribunal's reasons are read as a whole, it is apparent that after it accepted the evidence of the applicant's change in plans and intention to live with his mother and sister in South Australia, the Tribunal no longer considered the applicant's partner to be relevant to the decision.
138 I accept that, at least initially, the applicant did make a claim that he needed to remain in Australia in order to care for his de facto partner. However, the applicant made this claim on the basis that he would be living with his partner and caring for her full time. The important and defining point is this. The applicant subsequently changed his evidence to the effect that he would be living with his mother and sister in South Australia, and intended to spend a significant amount of time in rehabilitation. This was consistent with evidence given by his sister. It is clear from the Tribunal's reasons that it accepted this evidence of a change in position and as a result no longer considered the applicant's role in relation to his de facto partner to be a relevant factor. The new evidence before the Tribunal was that even if he stayed in Australia, he would not have a constant physical presence in his partner's life and would not be acting as a full time carer. On that basis, the applicant's partner was no longer a relevant consideration. The applicant was not denied procedural fairness in respect of his claim.
139 I would dismiss Ground 3 of the application.