Federal Court of Australia

BKX23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 184

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed under r 40.12 of the Federal Court Rules 2011 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from a judgment of this Court in which the primary judge dismissed an application for judicial review of a decision of the second respondent: BKX23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 585 (J). The Administrative Appeals Tribunal affirmed a decision of a delegate of the first respondent (Minister) under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the appellant’s Class CB Subclass 100 Partner visa (Tribunal or T).

2    Two issues arise on appeal, whether the primary judge erred in failing to find that the Tribunal:

(a)    acted under dictation by giving automatic effect to the reasons of an earlier Tribunal decision; and

(b)    erred by concluding that the appellant would not face harm if returned to Vietnam, or that the impediments that the appellant would face upon return had no significant weight, such that its decision was irrational or unreasonable.

3    The background may be briefly stated as follows. The appellant is a Vietnamese national who arrived in Australia with his mother and sister in April 2012. The appellant has a long history of mental illness. Relevantly, the appellant has been diagnosed with schizoaffective disorder since at least 2017.

4    The appellant was sentenced to an aggregate term of imprisonment of two years in December 2019, to be served by way of intensive correction in the community. The appellant was convicted of several offences, including possession of a prohibited drug, driving during disqualification, larceny and custody of suspected stolen goods, being armed with intent, and stalking/intimidating. The appellant breached the conditions of his intensive correction order in February 2020, and was shortly afterwards taken into custody to serve the remainder of his sentence. The appellant was then convicted in May 2020 for a series of similar offences, and was sentenced to a 12-month community correction order.

5    On 24 March 2020, the appellant’s visa was cancelled pursuant to s 501(3A) of the Act. The appellant sought revocation of the cancellation in accordance with s 501CA(4), which was not determined until 11 July 2022, when a delegate of the Minister refused to revoke the cancellation. It is this non-revocation decision which was the subject of review before the Tribunal.

6    However, relevantly, the appellant applied, at the same time as he was seeking review of the cancellation decision, for a protection visa on 10 June 2020. This was refused on 25 June 2020, and on 13 April 2021, the Tribunal affirmed the decision not to grant the appellant a protection visa (the MRD decision or earlier Tribunal decision). The earlier Tribunal made findings about the likely mental health care that the appellant would receive if he were removed to Vietnam. The appellant unsuccessfully challenged the earlier Tribunal’s decision in the Federal Circuit and Family Court of Australia (Division 2), and unsuccessfully appealed that decision in this Court.

Consideration

Whether the Tribunal acted under dictation

7    For the reasons which follow, we do not accept that the Tribunal acted under the dictation of the earlier Tribunal’s reasons and, accordingly, the primary judge did not err by failing to so find the same.

8    The sole issue for determination before the Tribunal was whether there was “another reason” to revoke the cancellation of the appellant’s visa in accordance with s 501CA(4)(b)(ii), having regard to Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. The Tribunal reasoned that several primary considerations weighed heavily against revocation of the Minister’s cancellation decision, namely protection of the Australian community (at T[30]), the fact that the appellant had engaged in family violence (at T[32]) and the expectations of the Australian community (at T[36]–[38]).

9    Central to this appeal, the Tribunal considered the appellant’s claimed risk of harm if returned to Vietnam, by reason of his mental health, with reference to the MRD decision, in these terms (at T[42]):

The issue of the applicant’s mental health was considered in the MRD decision at paragraphs 71 to 94. The conclusion reached by the Tribunal Member in the MRD decision was that based on the applicant’s own evidence and the available country information, there is no real chance that the applicant will be seriously harmed if he returns to Vietnam by reason of his mental health. The evidence before me did not support a contrary conclusion. I accept and adopt the reasons and conclusion in the MRD decision. Further, the issue of mental health is dealt with in the DFAT country information report on Vietnam dated 11 January 2022. It provides that the quality of mental health treatment in Vietnam varies from place to place and that about half of the provinces have a mental health facility at the main hospital. Basic treatment and basic medications are covered by social health insurance and the out-of-pocket cost for medication is low and affordable to most people. Whilst the mental health facilities in Vietnam are not to the same standard as in Australia, I do not consider that the applicant is at risk of harm if returned to Vietnam due to his mental illness.

10    With respect to the impediments that the appellant may face if he were removed to Vietnam, the Tribunal reasoned:

49.     The applicant is 32 years old and appears to be in good physical health. He suffers from schizoaffective disorder, but he states in his statement of facts and contentions that he has been getting professional help from doctors in detention and complying with treatment plans and that his mental state is improving. He has been drug free for about two and a half years. There would be no substantial language or cultural barriers because he grew up in Vietnam and speaks Vietnamese. During the hearing before the Tribunal, he asked for and used a Vietnamese interpreter. There is no evidence that the applicant will not be able to access health services, treatment and welfare available to other citizens of Vietnam.

50.     The applicant has raised the following impediments if he were to be removed to Vietnam:

(a)     that he would have less emotional support;

(b)     that he would not have access to sufficient mental health treatment;

(c)     that he would have difficulty obtaining employment and mental health condition; and

(d)     that he believes he would be jailed in Vietnam due to his mental illness and drug dependency.

51.     I accept that the applicant is likely to face emotional hardship if removed to Vietnam. He would not have the same level of family support in Vietnam and there would be a difficult period of adjustment because he has lived in Australia for the last 10 years. However, I do note that he has visited Vietnam on two occasions in that 10 year period. I consider it unlikely that the applicant would relapse into drug use due to the additional stressors if returned to Vietnam but I accept that there remains a slight chance of relapse which represents an additional impediment that he may face if removed from Australia.

52.     In summary, the applicant would face some impediments if removed to Vietnam and he may have difficulty establishing himself and maintaining basic living standards because of his mental health issues and because he would have less family and social support in Vietnam. I note that the applicant does have a brother and an aunt and uncle in Vietnam but he said that he has not kept in contact with them. The matters referred to above in relation to risk of harm are also relevant to extent of impediments and I will not repeat them here.

53.     This factor weighs in favour of revocation of the cancellation decision but I do not give it significant weight because the applicant would likely be able to access some medical treatment for his mental illness and because he speaks the language and has some family in Vietnam.

11    There was no challenge on appeal to the primary judge’s summation of the relevant caselaw regarding the meaning of “acting under dictation” within the meaning of the relevant authorities. “Acting under dictation” may occur where a decision-maker, tasked with a particular statutory function impermissibly merely adopts the decision of another body without undertaking the statutory task themselves: Evans v Donaldson (1909) 9 CLR 140; Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1311 at [41], citing Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286. However, a tribunal may accept or adopt a proposition of law, where that proposition itself was not erroneous: see WQKK v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 535 at [29].

12    Furthermore, the appellant did not dispute the ability of the Tribunal to take into account, as part of the material before it, the reasons contained in the MRD decision: That decision formed part of the documents relied upon by the Minister which were before the Tribunal. Rather, it was the appellant’s contention that the Tribunal was required to independently form the requisite state of satisfaction and failed to do so.

13    The challenge was premised on the assertion that the Tribunal had “erected a presumption that the finding in the earlier Tribunal decision [was] correct”. This was submitted to be so because: (a) the Tribunal stated that the evidence in the present case “did not support a contrary conclusion” and (b) the Tribunal would “accept and adopt the reasons and conclusion” in the earlier Tribunal decision: at T[42]. We do not accept that the Tribunal erected such a presumption.

14    A fair and reasonable reading of T[42], extracted at [9] above, does not support such a characterisation. This portion of the reasoning reveals that the Tribunal distinguishes its task and the evidence before it from that of the earlier Tribunal. This demonstrates, contrary to the appellant’s submission, that it was not the subject of “passive dictation” (where, while not being the subject of a stipulation by a third-party, the Tribunal treats the earlier Tribunal’s views as determinative), but rather did attend to its task independently. If it had been so constrained, it would not have considered the evidence before it (and compared the previous conclusion and evidence) and would not have gone on to consider the 2022 DFAT country information which had post-dated the MRD decision.

15    The appellant also contended that the Tribunal was required to independently evaluate the MRD decision and specifically substantiate the conclusion (in the MRD decision) that the appellant would be able to access a particular medication, namely paliperidone, in Vietnam. Whether there was such a requirement and, if there was, the extent of it, depends on the nature of the appellant’s claim before the Tribunal. It is apparent that the appellant made a generalised claim of harm arising from “there [being] limited mental health services and treatment available in Vietnam” to the Tribunal. Whilst there were various health records from 2017 and 2018 regarding the appellant’s medications before the Tribunal, there was no claim that the appellant required a particular kind of medication for which there were availability issues. Accordingly, we reject the submission that the Tribunal had an obligation to independently and specifically substantiate the conclusion that the appellant would be able to access a particular medication, namely paliperidone, in Vietnam.

16    The appellant also took issue with the primary judge’s description of the Tribunal “accepting” rather than “adopting” the earlier Tribunal’s reasons (at J[34]–[35]), which is extracted as follows:

34     Returning to what the 501CA Tribunal did in the present case, taken in isolation, its statement that it adopted the reasons and conclusion in the MRD decision on the state of mental health care that the applicant might receive in Vietnam when it did not itself have before it the evidence that was before the MRD Tribunal on that point makes it look like it simply adopted the decision of the MRD Tribunal rather than coming to its own view. However, I do not consider that that would be a fair reading of the 501CA Tribunal’s reasons taken as a whole. That is because before making that statement, it identified what the MRD Tribunal had concluded and it considered that the evidence before it did not support a contrary conclusion. In other words, it took the MRD decision as evidence (or material) before it, as it was entitled to, and also considered what other evidence was before it, and in the absence of contrary evidence then accepted the MRD decision on the point. The language of “accept” more accurately reflects what the 501CA Tribunal did, than its perhaps unfortunate language of “adopt”. It is to read the 501CA Tribunal’s reasons too critically – ie, minutely and finely with an eye too keenly attuned to the perception of error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272) – to regard it as having simply and uncritically adopted the MRD decision, or to have “reversed the onus” in the way in which it reasoned with reference to the MRD decision.

35     The conclusion that the 501CA Tribunal applied its own mind to the point in issue is bolstered by what follows the emphasised sentence at [42] (quoted at [12] above). That is, it went on to consider the 2022 DFAT report, which post-dates the MRD decision, and considered that that report supports the MRD decision. Although that consideration is recorded as coming after the stated adoption of the MRD decision reasons and conclusion, it nevertheless demonstrates that the 501CA Tribunal came to its own view on the point in question after having considered the material before it.

17    We do not accept the appellant’s submission. We divine no error in the primary judge’s analysis of the critical part of the Tribunal’s decision. We agree that when read fairly, the language of “accept” rather than “adopt” (at T[42]) more aptly describes what the Tribunal did. The fact that the Tribunal stated that the evidence before it did not support contrary conclusions, evinced both: (a) its understanding of its separateness from and capacity to depart from the factual findings of the earlier Tribunal, as part of an independent step in its achievement of the requisite state of satisfaction: the antithesis of dictation; and (b) that it considered the correctness of the factual findings by the earlier Tribunal by reference to the evidence before the Tribunal, and found that those factual findings remained correct.

Findings regarding harm and impediments if returned to Vietnam

18    The appellant submitted that there was “doubt” as to whether the appellant would receive his medication in Vietnam and, so long as there was such doubt, the Tribunal should not have concluded that harm was absent, or that impediments had no significant weight.

19    The “doubt” is said to have arisen by the Tribunal’s reliance on the judgment of the earlier Tribunal as to evidence, rather than viewing the evidence independently. For the reasons outlined above we do not accept this contention.

20    In addition, the appellant contended the “doubt” arose because the earlier Tribunal decision did not distinguish between schizophrenia and schizoaffective disorder and contended that it is possible that they are not the same condition and, therefore, the reliance in the earlier Tribunal decision on the availability of medication for schizophrenia is of potentially less weight for a person with schizoaffective disorder. Further, the appellant submitted that the language in the earlier Tribunal decision is guarded regarding the availability of a particular medication, paliperidone. For instance, the earlier Tribunal found that (at MRD[90]):

[t]here is no country information which suggests that the applicant’s medication, paliperidone is not available to health professional [sic] in Vietnam. In fact, the available country information indicates that the applicant’s medication is available in Vietnam.

(Footnotes omitted.)

21    Lastly, it was contended that the 2022 DFAT Report is expressed in such general terms that it does not displace the doubt flowing from the earlier Tribunal decision.

22    The basis for the claimed “doubt” appears to arise from the appellant’s recrafting or refining his claim on appeal and then criticising the Tribunal for not dealing with issues which were not properly before it. It is not apparent that the issue of the distinction between schizophrenia and schizoaffective disorder was before the Tribunal. The appellant described himself as having a “schizophrenic disorder” before the later Tribunal. Further, as identified by the primary judge, the appellant’s case before both Tribunals varied (at J[40]):

First, as indicated, the evidence before the MRD Tribunal, and indeed the 501CA Tribunal, varied as to whether the applicant’s diagnosis is schizophrenia or schizoaffective disorder. Although the better medical evidence, being the psychiatrist’s letter referred to at [27(2)] above, supports a diagnosis of schizoaffective disorder, some medical reports recorded his diagnosis as schizophrenia and his own statement said that he had “schizophrenic disorder”. Since the applicant did not himself present a clear case to either tribunal on just what his true diagnosis is, the tribunals can hardly be criticised for not drawing such a clear distinction themselves.

23    In any event, as the Minister submitted, the earlier Tribunal identified and accepted that the appellant lives with schizoaffective disorder and did not confine its analysis of country information to the condition of schizophrenia only: MRD[77]–[80], [89]–[90]. The appellant has not established how the country information cited by the earlier Tribunal, at MRD[77], was irrelevant to the appellant’s circumstances as a person with schizoaffective disorder. Relatedly, the primary judge had found that there was no evidence before the Tribunal to support “the premise inherent in the applicant’s criticism, namely that the medication to treat schizophrenia and to treat schizoaffective disorder is necessarily different”: at J[42]. There was no challenge on appeal in this respect.

24    In order for the Tribunal to validly exercise its jurisdiction, it did not need to definitively find that the appellant would or would not have access to medication in Vietnam (and by extrapolation resolve any doubt about the same). This is particularly so where there does not appear to have been any claim advanced, as referred to above, as to the need for a specific form of medication and consideration of its level of availability in Vietnam before the Tribunal.

25    To assist the appellant’s argument he sought leave under s 27 of the Federal Court of Australia Act 1976 (Cth) to rely on fresh evidence on appeal, namely an article contained in the Journal of Psychiatry and Clinical Neurosciences referred to at footnote 65 to MRD[90] of the MRD decision (the article). The Minister opposed that application.

26    The relevant paragraph (and footnote MRD[90]), was extracted in the primary judge’s reasons (see J[25]):

The Tribunal has accepted that the applicant suffers from schizoaffective disorder and that his mental health condition is significant. However, the Tribunal notes that his condition has been treatable. There is no country information which suggests that the applicant’s medication, paliperidone64 is not available to health professionals in Vietnam. In fact, the available country information indicates that the applicant’s medication is available in Vietnam.65 Therefore, as a citizen of Vietnam, the applicant would be able to access mental health facilities and treatment in Vietnam on an equal basis with other citizens of the country. There is no evidence to suggest that he would be systematically or discriminatorily denied access to mental health facilities in Vietnam.

64     Paliperidone is sold under the trade name INVEGA among others. It is a typical antipsychotic. It is marketed by Janssen Pharmaceuticals. INVEGA is an extended release formulation of paliperidone that uses the OROS extended release system to allow for once-daily dosing.

65     ‘Polypharmacy and psychotropic drug loading in patients with schizophrenia in Asian countries: Fourth survey of Research on Asian Prescription Patterns on antipsychotics’ 14 May 2018 https://doi.org/10.1111/pcn.12676; onlinelibrary.wiley.com/doi/full/10.1111/pcn.12676

27    The power to admit further evidence is remedial. Its primary purpose is to ensure proceedings do not miscarry. As observed by a Full Court of this Court in BVZ21 v Commonwealth of Australia [2022] FCAFC 122 at [12] per Markovic, Thomas and Halley JJ:

In exercising the discretion, the Court will normally need to be satisfied that the further evidence, had it been adduced at trial, would very probably have meant that the result would have been different, and further that the party seeking to adduce the evidence was, at trial, unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence: Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [15]–[16] (Griffiths, Mortimer and White JJ).

28    We refuse the application for the Court to receive the article. The article was neither before the Tribunal nor the primary judge. Indeed, the primary judge specifically referred to the fact that it was not before him: at J[41]. It is clear that the appellant was aware of the article’s existence, given its reference in the MRD decision, at the time of both the Tribunal hearing and before the primary judge, and no application was made to rely upon it. No explanation is provided as to why, despite that awareness, it was not put before both forums. Lastly, it appears to relate to a refined claim, regarding the availability of certain psychotropic medication available in Asia, which was not the subject of any specific representation before the Tribunal.

29    The Tribunal referred to the limited evidence, arising from the 2022 DFAT report (at T[42]), regarding the variable quality of mental health treatment, that about half of Vietnam’s provinces have a mental health facility at the main hospital and out-of-pocket cost of medication is low and affordable to most people. In addressing what the appellant had raised (again, in a general way) as the impediment he would face as a result of his mental health, “that he would not have access to sufficient mental health treatment” (T[50(b)]), the Tribunal found that he “would likely be able to access some medical treatment for his mental illness and because he speaks the language and has some family in Vietnam” (T[53]).

30    We do not accept that the Tribunal’s conclusion that the appellant would not face harm or significant impairment on account of his mental illness in Vietnam constitutes irrationality or unreasonableness. Further, we consider it was open for the Tribunal to conclude that some treatment was available, on the basis of the information disclosed in its reasons, such that there was no irrational attribution of weight to a relevant consideration.

Conclusion

31    For those reasons, we would dismiss the appeal with costs. We will make orders accordingly.

Associate:

Dated:    30 November 2023