Karan and Minister for Home Affairs (Migration)

Case [2018] AATA 4480

Karan and Minister for Home Affairs (Migration) [2018] AATA 4480 (4 December 2018)

Division:GENERAL DIVISION

File Number(s):      2018/5276

Re:Amit Karan

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:4 December 2018

Place:Sydney

The decision under review is affirmed.

............................[sgd].....................................

Chris Puplick AM, Senior Member

CATCHWORDS

MIGRATION – visa refusal  – character test – criminal record – multiple offences – violence offence – threatening offence – dishonesty offences – drug offences – traffic offences – property offences – primary and other considerations under Ministerial Direction No. 65 – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – other considerations –  ties to Australia – extent of impediments if removed – affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Abebe v Commonwealth (1999) 197 CLR 510

Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755

Ahmed and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4458

BFXK v Minister for Immigration and Border Protection [2018] AATA 886

CHFQ and Minister for Home Affairs (Migration) (2018) AATA 3858

Contreras v Minister for Immigration and Border Protection [2105] FCAFC 47

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Fasi and Minister for Home Affairs (Migration) [2018] AATA 4049

G v Minister for Immigration and Border Protection (2018) FCA 1229

Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458

Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13

Murphy and Minister for Immigration and Border Protection [2018] AATA 750

Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639

PNLB v Minister for Immigration and Border Protection [2018] AATA 162

Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634

Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306

Rowe and Minister for Home Affairs (Migration) [2018] AATA 2708

Saleh and Minister for Immigration and Border Protection [2017] AATA 367

Shi v Migration Agents Registration Authority [2008] HCA 31

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SZJSS and Others v Minister for Immigration and Citizenship [2010] HCA 48

The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273

Williams v Minister for Immigration and Border Protection [2014] FCA 674

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

American Psychiatric Association Diagnostic and statistical manual of mental disorders (5th ed, 2013)

Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworth, 4th edition, 2015)

Ministerial Direction No. 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA

REASONS FOR DECISION

Chris Puplick AM, Senior Member

4 December 2018

BACKGROUND

  1. Mr Amit Karan was born in 1978 in Fiji and is still a Fijian citizen. He arrived in Australia for the first time during…

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Details
AGLC
Karan and Minister for Home Affairs (Migration) [2018] AATA 4480
Case
[2018] AATA 4480
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of Mr Karan's visa. The applicant had failed the character test due to a criminal record encompassing multiple offences, including violence, threats, dishonesty, drug, and traffic and property offences. The delegate, in considering whether to revoke the cancellation, was required to follow Ministerial Direction No. 65, which outlines primary and other considerations.

The Tribunal was required to determine whether there was "another reason" for the mandatory cancellation of Mr Karan's visa to be set aside. In doing so, the Tribunal had to conduct a de novo merits review, standing in the shoes of the original decision-maker and making its own decision based on the evidence before it. The primary considerations under Direction No. 65 included the protection of the Australian community, the best interests of minor children in Australia, and the expectations of the Australian community.

In assessing the protection of the community, the Tribunal was directed to consider the seriousness of the offences and the risk of reoffending. Mr Karan contended that his offending behaviour was linked to an undiagnosed bipolar disorder stemming from childhood trauma. While acknowledging the diagnosis of PTSD and some behaviours consistent with bipolar disorder, the Tribunal noted the absence of a professional diagnosis for bipolar disorder and the possibility that drug abuse might have been a more significant factor in his offending. The Tribunal was required to weigh these factors against the primary considerations, ultimately determining whether the mandatory cancellation should be revoked.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

A decision on such an application is, in most circumstances, made by a delegate of the Minister. In the Applicant’s case, this review decision resulted in a determination that the mandatory revocation should not be set aside.[19] This is the reviewable decision.[19] Section 501 G Documents [17] – [31]. In coming to their decision, the Delegate noted that, since the Applicant had, by definition, failed the character test, it was required that the Delegate consider whether there was “another reason” for the revocation to be set aside. In doing so the Delegate followed the requirements set out in Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (the Direction) (discussed below) in coming to their conclusion. This is because under s 499(1) of the Act the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (s 499(2A) of the Act). Where a decision has been made by a delegate of the Minister under s 501CA(4) not to revoke a mandatory cancellation of a visa, the affected person may make an application to the Tribunal seeking a review of that decision under s 500(1) of the Act. In undertaking such a review, the Tribunal stands in the shoes of the original decision-maker and must make its decision de novo, uninfluenced by past decisions, but based on the evidence before it at the time of the hearing. It is important to state the general principles upon which the Tribunal must proceed in its own independent decision making. These may be summarised as including:“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct and preferable one on the material before the Tribunal.”[20]“The decision under review, as distinct from the reasons for it, must be given no weight by the AAT. The decision is to be reviewed for the correct and preferable decision reached: the original decision itself cannot influence the AAT in reaching its conclusion.”[21]“Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the “material before the Tribunal”…….But ultimately, it was for the Tribunal to reach its own decision upon the relevant material, including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.”[22][20] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at [page 11].[21] Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworth, 4th edition, 2015) at page 301 citing Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198; Commonwealth v (1985) 8 ALD 554 and Re KLGL and QCYY Australian Prudential Regulation Authority [2008] AATA 452.[22] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.

Ratio Decidendi

Legal Principle Established

The Ministerial Direction lists a series of considerations which the tribunal must address and these, in turn, are characterised as either “primary” or “other” considerations.PRIMARY CONSIDERATIONS There are three “primary conditions” related to revocation requests set out as:·Protection of the Australian community;·Best interests of minor children in Australia affected by the decision; and·Expectations of the Australian community.[33][33] Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, (the Direction) part 13.PROTECTION OF THE COMMUNITY In terms of the protection of the community, the Tribunal is directed to have regard to both the seriousness of the offences in question and the risk that, if allowed to remain in Australia, the applicant will reoffend. Before considering these matters the Tribunal has to take into account the persistent claim made by Mr Karan that he suffers from a form of bipolar disorder that was occasioned by a traumatic event when he was around 15 years of age and which has persisted, undiagnosed, to this day. He claimed that the mood swings associated with this disorder have been the underlying aetiology of a number of his behavioural issues, specifically:·His feeling empowered enough to cease his medication without any regard for the medical advice provided;·His outbursts of anger and aggression;·His disregard, as a form of bravado, of any laws related to driving; and·His use of drugs to relieve the pain of his “down” periods. Bipolar disorders are defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM5) and are characterised by some of the following attributes:·“Mood in a manic episode is often described as euphoric, excessively cheerful, high or ‘feeling on top of the world’.”·“The expansive mood, excessive optimism, grandiosity and poor judgement often lead to reckless involvement in activities such as spending sprees, giving away possessions, reckless driving, foolish business investment, and sexual promiscuity that is unusual for the individual, even though these activities are likely to have catastrophic consequences.”·“During a manic episode, individuals often do not perceive that they are ill or in need of treatment and vehemently resist efforts to be treated.”[34][34] American Psychiatric Association Diagnostic and statistical manual of mental disorders (5th ed, 2013) (Washington, DC, at pages 127-129. While Mr Karan has, from time to time, demonstrated aspects of the behaviours described above, the Tribunal does not have before it any professional diagnosis of his suffering from some form of bipolar disorder. Nor can it be certain, given the evidence, that some of Mr Karan’s offending behaviour may not have been more related to his drug abuse and problems rather than to his self-reported bipolar condition. On the other hand, there is certainly a diagnosis of PTSD related to both findings of the Drug Court and the International Health and Medical Services.