Federal Court of Australia

BKX23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 585

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed with costs.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    This is an application for judicial review pursuant to s 476A of the Migration Act 1958 (Cth) of a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the relevant Minister under s 501CA(4) not to revoke the otherwise mandatory cancellation of the applicant’s visa under s 501(3A). I will refer to that Tribunal as the 501CA Tribunal.

Background

2    The applicant was born in Vietnam. He is 32 years old. He came to Australia with his mother and sister in April 2012. He most recently resided in Australia under a class of partner visa. The applicant has a long history of mental illness and drug dependency. In particular, since at least 2017 he has been diagnosed with having schizoaffective disorder.

3    In December 2019, the applicant was sentenced to an aggregate term of imprisonment of two years to be served by way of intensive correction in the community. He had been convicted of numerous offences, including possession of a prohibited drug, driving during disqualification, larceny and custody of suspected stolen goods, being armed with intent, and stalking/intimidating. Not long after being sentenced, the applicant breached the conditions of the intensive correction order which was consequently revoked in February 2020. The applicant was taken into custody to serve the remainder of his sentence. In May 2020, he was convicted and sentenced to a 12-month community correction order for a series of similar offences.

4    On 24 March 2020, the applicant’s partner visa was mandatorily cancelled under s 501(3A) of the Migration Act on account of him having a “substantial criminal record”. Although he made representations for the revocation of the cancellation under s 501CA(4), those representations were out of time. However, it later turned out that the first notification to him of the cancellation and invitation to make representations was invalid, so a subsequent notification and invitation was issued. He thereafter made fresh representations, within time, but on 11 July 2022 the Minister’s delegate refused to revoke the cancellation. The applicant then sought review of the delegate’s decision in the 501CA Tribunal.

5    In the meanwhile, on 10 June 2020, the applicant had applied for a protection visa. That visa was refused on 25 June 2020. On 13 April 2021, the Migration and Refugee Division of the Administrative Appeals Tribunal affirmed that decision and in its reasoning made certain findings about the likely mental health care the applicant would receive if he were removed to Vietnam. I will refer to that decision as the MRD decision and to that tribunal as the MRD Tribunal. As will be seen, those findings were relied on in the subsequent decision by the 501CA Tribunal in the review of the delegate’s decision not to revoke the mandatory cancellation of the applicant’s partner visa, and that reliance is central to the applicant’s grounds of review.

6    The applicant brought an unsuccessful review of the MRD decision in the Federal Circuit and Family Court of Australia (Division 2), and then an appeal to the Federal Court. The appeal was dismissed on 13 May 2022. The review and then the appeal were limited to a ground based on the MRD Tribunal’s treatment of the applicant’s claim to protection based on harm he would face on account of his drug addiction if removed to Vietnam. That is to say, the MRD decision was not challenged insofar as it dealt with matters relating to the applicant’s mental health and the treatment that he might receive for it in Vietnam.

The 501CA Tribunal’s decision

7    On 28 September 2022, the 501CA Tribunal affirmed the delegate’s decision not to revoke the mandatory cancellation of the applicant’s partner visa.

8    It was not in dispute before the 501CA Tribunal that the applicant failed the character test, with the result that the sole issue before it was whether there was “another reason” as referred to in s 501CA(4)(b)(ii) to revoke the cancellation of the applicant’s visa.

9    The evidence before the 501CA Tribunal included the MRD decision from April 2021 and a subsequent DFAT Country Information Report on Vietnam dated 11 January 2022 (2022 DFAT report).

10    The 501CA Tribunal considered the applicant’s representations and applied Direction No 90, being a direction by the Minister under s 499 to guide decision-makers making decisions under s 501 or 501CA. The 501CA Tribunal found that the primary considerations of protection and expectations of the Australian community, and family violence committed by the applicant, weighed heavily in favour of a decision not to revoke the cancellation. Having considered the primary and other considerations, the 501CA Tribunal concluded that it was not satisfied that there was another reason why the cancellation should be revoked.

11    One of the matters necessarily considered by the 501CA Tribunal was the applicant’s representations concerning the risk of harm faced by him if he were removed to Vietnam. The applicant’s evidence was that he has “schizophrenic disorder” for which he receives daily medications and injections every three months, and that he needs to be counselled and to be on continuous antipsychotic medication. He said that he believes there are limited mental health services and treatment available in Vietnam for someone like himself who suffers from multiple complex medical issues.

12    Critically to the applicant’s ground of review in this Court, the 501CA Tribunal reasoned at [42] as follows:

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.

(Emphasis added.)

13    Later in its reasons, in the context of considering the extent of impediments that may be faced by the applicant if he were removed to Vietnam, the 501CA Tribunal returned to the applicant’s submission that he would not have access to adequate mental health treatment. The 501CA Tribunal said that “[t]he matters referred to above in relation to risk of harm are also relevant to the extent of impediments and I will not repeat them here.” The matters referred to would appear to be the matters canvassed in [42] quoted above.

14    The 501CA Tribunal concluded that the extent of impediments consideration weighs in favour of revocation of the cancellation decision, but did “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.”

Grounds of review

15    The applicant’s complaints with regard to the 501CA Tribunal’s reasoning can be summarised as follows.

16    First, the applicant submits that the 501CA Tribunal “acted under dictation” by relying on the MRD decision. He submits that there is no indication in the 501CA Tribunal’s reasons that it independently had access to, and undertook an evaluation of, the evidence relied on in the MRD decision. It can thus be inferred that the 501CA Tribunal took the MRD decision at face value and asked itself whether there was any contrary evidence before it, and in the absence of such evidence, merely adhered to the earlier decision. He submits that that does not entail the 501CA Tribunal reaching the state of satisfaction reposed in it by s 501CA(4)(b)(ii). Instead, it comprises deference to the distinct state of satisfaction as to persecution and complementary protection relevant to the MRD decision.

17    Secondly, and relatedly, the applicant submits that the MRD decision was unsatisfactory, at least for the purposes of the present case. He submits that the critical question was whether the applicant would obtain specific treatment in Vietnam for schizoaffective disorder. There was no consideration of whether he could maintain progress or stability with merely monthly medical consultations, outside the context of detention. He submits that there was no direct evidence that he would be able to obtain paliperidone and sodium valproate, the two medications that the evidence showed that he was prescribed and was regularly taking, in Vietnam. He submits that the only relevant evidence referred to in the MRD decision is generic evidence regarding medical treatment for schizophrenia, not schizoaffective disorder. On that basis, the applicant submits that there is no logical basis to the 501CA Tribunal’s decision with regard to medical treatment in Vietnam.

18    Thirdly, insofar as the 501CA Tribunal in the second half of [42] (ie, after the emphasised sentence quoted at [12] above) went on to separately consider the evidence before it, namely the 2022 DFAT report, that evidence referred only to basic treatment and basic medications or medication generally. The applicant submits that there is nothing to suggest that it extends to paliperidone and sodium valproate, and regular specialist medical attention. On that basis, as in relation to the MRD decision, he submits that there was no logical basis to the 501CA Tribunal’s decision with regard to medical treatment in Vietnam.

19    The applicant submits that each of the above errors is material in the relevant sense and therefore constitutes jurisdictional error.

Consideration

20    Given the centrality of the MRD decision to the applicant’s grounds of review, it is necessary to give some consideration to aspects of that decision. As mentioned, it is the decision of the MRD Tribunal which affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant’s protection visa application relied on his mental health condition in two respects. First, he claimed, which was accepted by the MRD Tribunal, that he was a member of a particular social group as a person with a mental illness, schizophrenia, within the meaning of s 5J(1)(a) of the Migration Act. That was for the purpose of his claim for protection under s 36(2)(a), ie, that he is a non-citizen in Australia in respect of whom Australia has protection obligations because he is a refugee. Secondly, the applicant claimed to be owed protection under s 36(2)(aa) (ie, complementary protection) on the basis that as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm including on account of his mental illness.

21    The MRD decision variously described the applicant as having a diagnosis of schizophrenia and schizoaffective disorder. It explained that schizoaffective disorder is a mental illness presenting as a combination of symptoms, including hallucinations or delusions, depression, or mania. It recognised that schizoaffective disorder requires ongoing treatment and support, and that people with schizoaffective disorder typically respond best to a combination of treatments including medications, psychotherapy and life skills training.

22    The MRD decision recorded that the applicant’s evidence was that he was receiving a monthly dosage by injection of paliperidone and a daily dosage of sodium valproate to treat his condition. It accepted that he had been stable on this medication and did not present as a significant risk to himself or others.

23    The MRD decision went on to deal with the likely medical support the applicant would receive in Vietnam for his condition. It recorded that people with schizophrenia have access to a community-based mental health program which includes free access to a number of essential psychotropic medicines for prioritised mental health disorders which include schizophrenia, depression and epilepsy, as well as monthly consultations with medical staff in community health stations. Schizophrenia along with epilepsy is considered a social disease and patients are treated for free with medication provided by the government.

24    The MRD decision accepted that the mental health facilities and the social support for Vietnam citizens with a psychiatric condition are not as comprehensive as that available in Australia. It accepted that the health system in Vietnam tends to be stronger and more comprehensive in the more urban areas of the country, which include the area to which the applicant would likely return. On that basis, the MRD decision found that the applicant would be able to access medication for his mental condition in his local province in Vietnam.

25    The critical paragraph of the MRD decision to which the applicant draws attention in the present case, [90], with the relevant footnotes, is in these terms:

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

26    The MRD decision concluded 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. That conclusion dealt with both his refugee and complementary protection claims insofar as they were based on mental health.

27    The evidence before the 501CA Tribunal on the question of the applicant’s mental health and the likely treatment he would receive if returned to Vietnam was somewhat limited, and was certainly far less than would appear to have been before the MRD Tribunal. Relevantly, it included the following:

(1)    The applicant’s own brief statements with regard to him having “schizophrenic disorder”, receiving daily medications and injections every three months, and needing to be counselled and to be on continuous antipsychotic medication. He also stated that he believes that there are limited mental health services and treatment available in Vietnam for someone like himself who suffers from multiple complex medical issues.

(2)    A letter from a psychiatrist at Liverpool Hospital dated 20 June 2017 in which the applicant is described as diagnosed with schizoaffective disorder with a background history of substance abuse. It records that he was receiving paliperidone injections monthly and sodium valproate daily.

(3)    A doctor’s clinical report dated 13 September 2018 describing the applicant as having a history of schizophrenia and his reason for the surgery consultation to be schizophrenia. The report records prescriptions for the same medications.

(4)    The MRD decision.

(5)    The 2022 DFAT report.

28    It is in that context that [42] of the 501CA Tribunal’s reasons must be understood. In particular, it is in that context that the question whether the 501CA Tribunal acted under dictation (within the meaning of the relevant authorities) or failed to execute the statutory task must be considered.

29    As explained by Colvin J in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; 273 FCR 121 at [184], an administrative decision-maker does not undertake a fact-finding task of the same character as is undertaken by a court; in the Tribunal, evidence is simply the material before the Tribunal, however received. The Tribunal may act on any probative material, and it need not reason from that material in the way a court would reason. See Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 282.

30    On that basis, it was clearly open to the 501CA Tribunal to treat the MRD decision as being material before it which could be taken into consideration in coming to its own decision. What it could not do is “act under dictation” by the MRD Tribunal, although that expression of this form of error puts it too strongly – to simply give automatic effect to the decision of another will amount to such an error: Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 418 per Gibbs CJ .

31    An early example of the “acting under dictation” ground succeeding is of a decision-maker that was tasked with a statutory function impermissibly merely adopting the decision of another body in Evans v Donaldson [1909] HCA 46; 9 CLR 140. A Royal Commission had been appointed to investigate complaints with regard to the administration of the Weights and Measures Department. It took evidence and recommended a radical change in the system. An issue that then arose, and which came before the justices in Petty Sessions, was whether the appellant, an officer of that Department, should be removed from his position. The magistrates said that they were not going to review the findings of the Royal Commission. Griffiths CJ (at 152-153), with whom Barton J agreed, reasoned that it was impossible to regard that approach by the Petty Sessions as being “a real investigation” – “somebody else had come to the conclusion that the appellant had been guilty of conduct which was unsatisfactory, and thereupon the Bench made an order for his removal.” Similarly, O’Connor J (at 155) concluded that the order made by the Petty Sessions “was not the result of their inquiry, nor does it represent any act of their minds, or any exercise of their judgment with respect to the subject matter of the inquiry.”

32    The applicant in the present case refers to Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1311. The issue was whether the Tribunal’s conclusion that the appellant failed to satisfy a requirement for a valid application for a particular visa was affected by error. For a valid application, the applicant’s university degree had to have been “completed” in the period of six months immediately before the day the application was made. The Tribunal took the relevant university’s view of the date of completion of the degree as dispositive of when the degree was completed without itself engaging in an analysis of what the relevant regulation required by way of completion. McKerracher J held (at [41]) that approach to amount to, in effect, impermissible dictation. His Honour reasoned (at [43]) that it was the Tribunal that was required to reach a state of satisfaction as to the relevant completion date, and that clear words would be necessary to enable that state of satisfaction to be stipulated by the university.

33    The Minister refers to WQKK v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 535 in which it was contended that the relevant tribunal had simply adopted what had been said by a differently constituted tribunal in an earlier decision on a particular point. The point at hand was whether the costs of keeping the applicant in prolonged immigration detention should weigh in favour of revocation of the cancellation of his visa. The earlier tribunal had reasoned that such costs are matters for the Commonwealth government and that it was not appropriate for them to be considered as a basis for the favourable exercise of the discretion to revoke a cancellation. The subsequent tribunal, being the one whose decision was under review, expressed its agreement with the approach of the previous tribunal. Kennett J rejected the contention that that was impermissible. His Honour reasoned (at [28]-[29]) that insofar as what was agreed with was a proposition of law, it was open to the second tribunal to do so which would be in error only if the proposition itself was erroneous, and that insofar as it was the “appropriateness” of taking into account the costs of future detention, that was a matter for the judgement of the tribunal. The implication is that on such a matter the tribunal could arrive at its judgement by adopting the judgement of a previous tribunal.

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.

36    For those reasons, I am not satisfied that the error of acting under dictation is established.

37    I turn now to the second criticism of the 501CA Tribunal’s decision, which is that the MRD decision was unsatisfactory and could not properly have been relied on. That was on the basis that there was no direct evidence that the applicant would be able to obtain the particular medication that he is being treated with in Australia, namely paliperidone and sodium valproate, in Vietnam. In particular, the applicant levels criticism at the MRD Tribunal’s conclusion that country information indicates that the applicant’s medication is available in Vietnam. That is on the basis that the title to the article in footnote 65 in [90] (quoted at [25] above) refers to schizophrenia and not schizoaffective disorder, which on the face of it suggests that the article deals with medications available for schizophrenia and not for schizoaffective disorder, the applicant’s condition.

38    It is to be recalled that in determining whether it is satisfied that there is “another reason” for revoking a cancellation decision, the tribunal undertakes the assessment by reference to the case made by the former visa holder by their representations. In doing so, it must read, identify, understand and evaluate the representations, bringing its mind to bear upon the facts stated in them. The tribunal will sift the facts, arguments or opinions put forward, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to representations is a matter for the tribunal. The requisite level of engagement by the tribunal will necessarily depend on the nature, form and content of the representations. See Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [22]-[25]. It follows that what evidence, or material, the former visa holder seeking revocation puts to the tribunal affects the manner in which the tribunal is obliged to deal with any particular contention.

39    In my view, the criticism presently under consideration must be rejected for a number of reasons related to the paucity of evidence, or material, put forward by the applicant and the absence of any representation directed to there being materially different treatment regimens for schizophrenia and schizoaffective disorder.

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.

41    Secondly, the applicant did not put the article referred to in footnote 65 in [90] of the MRD decision before the 501CA Tribunal, or indeed the Court. It is therefore not possible to conclude that the article does not support the conclusion for which it is cited, namely that available country information indicates that the applicant’s medication is available in Vietnam. There is no reason to doubt the MRD Tribunal’s conclusion that the applicant’s medication is available in Vietnam, and the applicant did not seek to challenge that conclusion before the 501CA Tribunal. In the absence of such a challenge, and the absence of any evidence to the contrary, the 501CA Tribunal cannot be criticised for accepting the MRD Tribunal’s reliance on that article.

42    Thirdly, and relatedly, there was no evidence before the 501CA Tribunal, and there is none before the Court, supporting the premise inherent in the applicant’s criticism, namely that the medication to treat schizophrenia and to treat schizoaffective disorder is necessarily different. That is to say, even if it were accepted that the cited article supports only the conclusion that medication to treat schizophrenia is available in Vietnam, that does not go anywhere in establishing that that medication is not also appropriate for the treatment of schizoaffective disorder. Indeed, as mentioned, the MRD decision states that schizoaffective disorder is schizophrenia with additional symptoms, such as symptoms of psychosis or a mood disorder. That does not suggest that medications for schizophrenia are not appropriate for the treatment of schizoaffective disorder.

43    Finally, there is the applicant’s criticism that the 2022 DFAT report refers only to basic treatment and basic medications, or medication generally, and does not deal in sufficient detail, or with sufficient precision, with the position of the availability of treatment in Vietnam for the applicant’s particular diagnosis and the availability of the medications that he is currently prescribed in Australia.

44    That criticism of the 501CA Tribunal must also be rejected. In circumstances where the applicant put no evidence forward with regard to what treatment would likely be available to him in Vietnam, the tribunal had to do the best with what it had. There is nothing in that evidence to suggest that appropriate medications would not be available to the applicant in Vietnam, and the generality of the information in the 2022 DFAT report does not suggest the contrary.

Disposition

45    For those reasons the application falls to be dismissed. It is common ground that the costs should follow the event.

Associate:

Dated:    5 June 2023