Federal Court. Could the Tribunal act under dictation by the decision of a previous Tribunal or give automatic effect to it? Is it open to a subsequent Tribunal to agree with a proposition of law from a previous Tribunal, but only if the proposition itself was correct?
The Tribunal affirmed a decision of a delegate to refuse to grant the Applicant a protection visa (the MRD decision). Later, the Tribunal affirmed a decision of a delegate to refuse to revoke under s 501CA(4) of the Migration Act 1958 (Cth) (the 501CA Tribunal decision).
In making the 501CA Tribunal decision, the Tribunal decision said (emphasis added):
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.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: In circumstances where "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", was it "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"?
Question 2: Could the 501CA Tribunal act under dictation by the MRD Tribunal or give automatic effect to the decision of the MRD Tribunal?
Question 3: If a decision-maker is tasked with a statutory function impermissibly merely adopts the decision of another body, is this an example of the “acting under dictation” ground succeeding?
Question 4: Is it open to a subsequent Tribunal to agree with a proposition of law from a previous Tribunal, but only if the proposition itself was correct?
Question 5: If the answer to Question 2 is 'no', did the 501CA Tribunal act under dictation by the MRD Tribunal or give automatic effect to the decision of the MRD Tribunal?
The FCA answered those questions as follows: