Federal Court (Full Court). FCCA remitted matter to AAT "for determination according to law". AAT disagreed with FCCA reasons and instead followed an earlier FCA decision. Was AAT bound to follow FCCA conclusion? Should a judge follow the judgment of another judge of the same court unless persuaded it is clearly wrong? If FCCA (previous FCCA) finds alternative grounds against Minister, matter is remitted to AAT, Minister does not appeal, AAT affirms original decision and non-citizen applies to FCCA (next FCCA) for judicial review: is it an abuse of process for Minister to argue before next FCCA that previous FCCA was wrong; does previous FCCA decision create an issue estoppel? Are the consequences of a past act or omission capable of engaging the complementary protection criterion in s 36(2)(aa)?
Some of the questions to the Full Court of the Federal Court (FCA) were as follows:
Question 1: The Federal Circuit Court (FCCA) remitted a matter to Tribunal (AAT) "for determination according to law". The Tribunal disagreed with the reasons given by the FCCA and instead followed an earlier decision of the Federal Court (FCA). Was the Tribunal bound to follow conclusion of the FCCA?
Question 2: Should a judge follow the judgment of another judge of the same court unless persuaded it is clearly wrong?
Question 3: If the FCCA (previous FCCA) finds alternative grounds against the Minister, the matter is remitted to the Tribunal, Minister does not appeal from the previous FCCA's decision, the Tribunal affirms the original decision and the non-citizen applies to the FCCA (next FCCA) for judicial review, is it an abuse of process for the Minister to argue before the next FCCA that the previous FCCA was wrong?
Question 4: If the previous FCCA finds alternative grounds against the Minister, the matter is remitted to the Tribunal, Minister does not appeal from the previous FCCA's decision, the Tribunal affirms the original decision and the non-citizen applies to the next FCCA for judicial review, does the conclusion of the previous FCCA's decision create an issue estoppel?
Question 5: The Tribunal found that the non-citizen witnessed a murder in Fiji and that he was traumatised by that event. It also found that, as a result, the non-citizen would suffer psychological harm if returned to Fiji. Are the consequences of a past act or omission capable of engaging the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth), read together with s 36(2A) and the definition of “cruel or inhuman treatment or punishment” in s 5(1)?
If the answer to Question 5 is "no":
Question 6: Will a past act or omission necessarily be irrelevant in assessing whether there is a real risk that the visa applicant will be subjected to an act or omission constituting cruel or inhuman treatment or punishment in the future?
Question 7: Does it mean that an act or omission in the future may not represent a continuing act or omission that started in the past?
The FCAFC answered those questions as follows: