Administrative law and migration law – nature of a court order that a matter be remitted to the AAT ‘for determination according to law’ – complementary protection provisions in the Migration Act 1958

In BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222 (10 December 2020) the Full Court dismissed an appeal from the Federal Circuit Court of Australia.

The main issue raised by the appeal was whether the “complementary protection” provisions in the Migration Act 1958 (Cth) were capable of application where an applicant for a protection visa claims that he or she will suffer psychological harm if returned to his or her home country on the basis of an act that occurred in the past in the home country.

The Full Court held that, having regard to the text, legislative history and context, the preferable construction of s36 of the Migration Act was that an act or omission that is wholly in the past is not capable of engaging the complementary protection criterion in the Migration Act (at [86]).

One of the grounds of appeal was that the Federal Circuit Court erred by failing to hold that the Administrative Appeals Tribunal (AAT) erred by failing to apply an earlier judgment of the Federal Circuit Court (ground 1).

In the earlier judgment the Federal Circuit Court set aside a decision of the AAT and remitted the matter to the AAT for “determination according to law”. The appellant contended that the earlier Federal Circuit Court decided that the complementary protection provisions could apply where a person would suffer the consequences of a past act, and the AAT was bound to apply that decision (particularly in circumstances where the Minister did not appeal from the Federal Circuit Court judgment).

The Full Court rejected ground 1. In so doing, it considered whether the AAT was bound to decide the matter in accordance with a legal conclusion expressed in the reasons for judgment of the court remitting the matter, irrespective of the correctness of that conclusion (at [58]-[60]).

Chief Justice Allsop and Moshinsky and O’Callaghan JJ explained (at [58]): “…The matter was remitted to the Tribunal ‘for determination according to law’. The Tribunal was therefore bound to apply the law to the determination of the matter following its remittal. It may be accepted that, in the usual case, the law will have been correctly stated in the judgment of the court that remits the matter. However, there may be exceptional cases where that is not the case. For example, it may be that, in the period between the judgment of the court remitting the matter and its redetermination by the Tribunal, a higher court has resolved the issue differently from the court that remitted the matter. In such a case, the obligation on the Tribunal would be to apply the law as stated by the higher court, this being the correct statement of the law on the point.”

Dan Star QC is a Senior Counsel at the Victorian Bar, ph 03 9225 8757 or email danstar@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.

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