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

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

The Tribunal did not act under dictation because, on a fair reading of its reasons, it treated the earlier Tribunal decision as material before it, recognised that the evidence before it did not support a contrary conclusion, considered later DFAT country information, and independently reached its own state of satisfaction. The challenge to the findings about harm and impediments failed because the refined claims about schizophrenia, schizoaffective disorder and paliperidone availability were not properly advanced before the Tribunal, and it was open on the material for the Tribunal to find that the appellant would likely be able to access some medical treatment in Vietnam and would not...

Jurisdiction
Australia
Judgment Date
30 November 2023
Procedural Posture
Migration Appeal / Appeal From a Judgment Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Non Revocation of Mandatory Visa Cancellation
Outcome
Appeal dismissed with costs.
Legal Topics
['mandatory Visa Cancellation' 'revocation Under S 501 Ca(4)' 'acting Under Dictation' 'irrationality or Unreasonableness' 'risk of Harm on Return' 'impediments on Return' 'fresh Evidence on Appeal']
['migration Law' 'administrative Law'] ['mandatory Visa Cancellation' 'revocation Under S 501 Ca(4)' 'acting Under Dictation' 'irrationality or Unreasonableness' 'risk of Harm on Return' 'impediments on Return' 'fresh Evidence on Appeal']

Case Brief

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Procedural Posture

Migration Appeal / Appeal From a Judgment Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision Affirming Non Revocation of Mandatory Visa Cancellation

Legal Issues

  1. 1 ['Whether the primary judge erred in failing to find that the Tribunal acted under dictation by giving automatic effect to the reasons of an earlier Tribunal decision.' 'Whether the primary judge erred in failing to find that the Tribunal irrationally or unreasonably concluded that the appellant would not face harm if returned to Vietnam, or that impediments on return had no significant weight.' 'Whether the Court should receive fresh evidence on appeal under s 27 of the Federal Court of Australia Act 1976 (Cth).']

Ratio Decidendi

The Tribunal did not act under dictation because, on a fair reading of its reasons, it treated the earlier Tribunal decision as material before it, recognised that the evidence before it did not support a contrary conclusion, considered later DFAT country information, and independently reached its own state of satisfaction. The challenge to the findings about harm and impediments failed because the refined claims about schizophrenia, schizoaffective disorder and paliperidone availability were not properly advanced before the Tribunal, and it was open on the material for the Tribunal to find that the appellant would likely be able to access some medical treatment in Vietnam and would not...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs as agreed or taxed under r 40.12 of the Federal Court Rules 2011 (Cth)."]