Karan and Minister for Home Affairs (Migration)
[2018] AATA 4480
•4 December 2018
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
Mr Amit Karan was born in 1978 in Fiji and is still a Fijian citizen. He arrived in Australia for the first time during December 1990 and between then and February 1998 made several trips between the two countries.
On 12 September 2018 a Delegate of the Minister for Home Affairs notified the Applicant that a decision, made originally on 5 July 2017, to cancel Mr Karan’s visa because of his “substantial criminal record”, was affirmed. This visa cancellation was mandatory under the provisions of the Migration Act 1958 (the Act).
On 12 September 2018 Mr Karan appealed to this Tribunal for a review of that decision. The Tribunal heard his application on 26 November 2018 and, under the provisions of the Act was required to render its decision by 5 December 2018, failing which the Minister’s decision would be taken as affirmed.
MR KARAN’S PERSONAL HISTORY
Mr Karan was born in Fiji and according to a psychiatrist’s report of 3 January 2018 “had a reasonably good childhood” although being somewhat distant from his parents and “rebellious as a teenager.”[1] At the age of about 15 his parents sent him to the United States to further his education. Support for him in the United States was provided by a friend of his uncle. However it appears that the Applicant suffered some form of sexual abuse at his hands which, he claims has left him deeply traumatised. Mr Karan did not reveal this history of abuse to anyone, and indeed, his mother, in her oral testimony stated that she had only recently heard about this matter and that the information had not come from her son but from another party.
[1] Section 501 – G Documents at [67].
Following this psychiatric evaluation Mr Karan was diagnosed with Posttraumatic Stress Disorder.[2]
[2] Idem.
As already noted, Mr Karan made several trips between Fiji and Australia in the period December 1978 to February 1998 for periods varying between five days and 15 months. In the five year period from 1991 to 1996 Mr Karan resided primarily in Fiji. Since basically settling in Australia in 1998 Mr Karan has continued to travel, again mainly to Fiji and has made at least 6 such trips.[3]
[3] Ibid at [39]-[42].
These trips to Fiji were by way of holiday and Mr Karan in his own oral evidence said that his time there consisted of “staying in hotels, drinking and having a good time.” On one of these trips, details are not clear, Mr Karan married his wife in a Hindu ceremony and she returned to Australia with him. They have since had two children together, a daughter born in November 2010[4] and a son born in May 2017.
[4] Mr Karan in his original documentation lodged with the Department noted recorded that his daughter was born in July 2010 (Section 501 – G Documents at [55]) but in oral evidence corrected this to November 2010. There is no documentary evidence before the Tribunal to confirm either date but it accepts Mr Karam’s sworn evidence relating to the November date as being correct.
Mr Karan appears to have no relatives in Fiji. His mother, his brother, his uncle and two listed cousins are all resident in Australia and appear to be Australian citizens.[5]
[5] Section 501 – G Documents at [57].
His father is deceased, but prior to his death Mr Karan was actively involved in a managerial role in the family business established by his father which worked primarily in the construction industry, specialising in demolition work. It appears that his parents came to Australia as a consequence of their family business being destroyed in the wake of the 2007 military coup in Fiji.
Mr Karan has a significant problem with the abuse of illicit drugs. He started smoking marijuana at around 18 years of age and then graduated to the use of heroin. He admits to using heroin almost “daily” over a period of many years. As part of his rehabilitation programme through the Drug Court, Mr Karan has been on the methadone programme and is currently taking this medication. However he had previously been on such a regime but had failed to be compliant with it after his earlier release from custody. On at least one occasion Mr Karan overdosed and but for the prompt actions of a taxi driver, the police and ambulance services, the outcome of this could have been fatal.[6]
[6] Material produced by the New South Wales Police Force pursuant to the Summons to Produce Documents at [52].
Furthermore Mr Karan admits to regular bouts of binge drinking and his description of what he does on his holidays in Fiji is somewhat confirmatory of this.
Mr Karan has also been prescribed Seroquel to deal with some of his depressive/mental health issues, although, as with the methadone, he has frequently been non-compliant with his medication regime. When pressed on this matter Mr Karan offered the opinion that he “knew his body better than anyone” and as a result “knew” when he did not need to take medication because he could “manage myself without it”.
Mr Karan’s relationship with his wife is problematic and will be discussed below, sufficient to say that at present they are separated and his wife has custody of the two children. She previously resided with this mother but this relationship has also terminated.
It is also important to note that this is not the first instance in which Mr Karan has come to the attention of the Minister in circumstances which could have led to the cancellation of his visa. On 13 November 2001 Mr Karan was advised by the Department that thought was being given to the cancellation of his visa on character grounds. He was given an opportunity to respond to this Departmental notification and did so in an interview on 26 November 2001. His parents were also interviewed. The Minister considered Mr Karan’s representation and decided not to proceed with the visa cancellation, instead issuing a warning letter to the effect that further offending on Mr Karan’s part could result in reconsideration of this decision.[7] Mr Karan received and acknowledged the warning in question on 23 April 2002.[8]
[7] Ibid at [87].
[8] Ibid at [88].
MR KARAN’S CRIMINAL HISTORY
Mr Karan has a long and extensive criminal history of offending which began in November 1998, the year he arrived in Australia. It has continued right up until his most recent offence in March 2017. He has appeared before the courts on at least 30 separate occasions and been convicted of found guilty of at least 75 offences.
These offences have covered a variety of matters, including:
·Violence – common assault involving domestic violence
·Threats of violence – including stalking or intimidation
·Traffic offences – including numerous instances of driving while disqualified, negligent driving, driving an unregistered vehicle, using an uninsured vehicle and driving with a cancelled licence
·Drug offences – including possession of drugs and drug-using equipment
·Dishonesty offences – including stealing, shoplifting, providing false information to licensing authorities, obtaining financial advantage by deception
·Property offences – including destroying or damaging property
·Bail breaches – including at least two counts dealt with by the courts.
Mr Karan has been convicted of some sort of offence in every year from 1998 onwards (with the exception of 2003, 2005 and 2016), although some offences were committed in 2003 and 2005. In the period 2000 to 2017 at least 19 terms of imprisonment were imposed on Mr Karan, including multiple terms of more than 12 months[9].
[9] Respondent’s Statement of Facts, Issues and Contentions (Revised) at footnote (1) page [15].
Custodial sentences are essentially matters of last resort for the courts and where they are imposed they bespeak of the seriousness with which the courts have regarded the evidence before them.[10] This evidence is not only about the immediate offence but also about the previous record and behaviour of the individual concerned. This Tribunal cannot ignore the fact that these numerous custodial sentences have been imposed.
[10] PNLB v Minister for Immigration and Border Protection [2018] AATA 162 at [22]; Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50].
The Tribunal does not consider it necessary to go into fine detail about these offences but rather to highlight a couple of the more relevant matters.
There appear to be some 18 instances where Mr Karan was convicted of driving while disqualified, these offences taking place from August 1999 to March 2017. While the system was in place Mr Karan was regarded as a “habitual offender”.[11] This behaviour simply evidences a complete disregard both for the laws of Australia and, potentially, the safety of other people using the roads. Mr Karan’s excuse that he needed to have a vehicle to drive to work and that his mental illness (see below) was mitigating factors are wholly unacceptable. Even more to the point, Mr Karan has also been convicted of driving while under the influence of alcohol and driving without wearing a seat-belt.
[11] The “habitual offender” category has since been abolished in NSW: Section 501 – G Documents at [65].
The conviction for common assault (21 July 2009) appears to be an incident related to a domestic argument which resulted in Mr Karan pushing his wife, causing her to fall down. It then continued with shouting and arguments both about money, which Mr Karan wanted his wife to give him to purchase drugs and access to a motor vehicle. The Police report concludes with the comment that they “have no fears for the safety of any parties involved and have not applied for an AVO.”[12] In court the matter was disposed of by imposition of a fine ($250), a bond (12 months) and an order for Mr Karan not to assault, molest or harass any relevant party.[13]
[12] Material produced by the New South Wales Police Force pursuant to the Summons to Produce Documents at [76]-[77], hereafter “Summonsed material”.
[13] Section 501 – G Documents at [28].
On 20 August 2014 Mr Karan was involved in an incident with his father resulting from the fact that Mr Karan had demanded access to car keys in order to drive a motor vehicle and his father had refused to surrender them because, according to the Police report, he said: “No, you don’t have a licence and I know you gonna go and take drugs.” This all escalated to the point where Mr Karan’s wife became involved, threats were made by him to both his wife and father, there was some form of (minor) physical altercation and the police were called.[14] This resulted in an eventual conviction and a fine.[15] The sentencing Magistrate clearly regarded the incident as being at “the very lowest end of the scale” but more seriously however, noted that this offence occurred while Mr Karan was on parole.[16]
[14] Summonsed Material at [59]-[60].
[15] Section 501 – G Documents at [26].
[16] Ibid at [34].
Several of Mr Karan’s charges resulted in him being referred to the Drug Court at Parramatta. He has appeared there on some seven occasions. This court provides a specialist service for assisting offenders with drug-related problems and Mr Karan was successful in completing one of these programmes.
It was as a result of this Drug Court intervention that Mr Karan first obtained access to some form of psychological counselling and prescribed medication. Due to the confidentiality provisions in that Court’s establishing legislation, the Tribunal did not have access to any of this material but relied upon Mr Karan’s oral evidence. The key elements of this evidence were to the effect that Mr Karan received a diagnosis of PTSD and was prescribed medication, with which he failed to be compliant. According to Mr Karan’s testimony, on several other occasions Mr Karan was released by the Drug Court subject to his undertaking drug and alcohol counselling interventions. The Respondent points out that “that there is no independent or authoritative evidence demonstrating that the Applicant has participated in any drug or alcohol counselling programs”.[17]
[17] Respondent’s Statement of Facts, Issues and Contentions (Revised) at [39(f)] and [40].
The Tribunal is also obliged to take into consideration that Mr Karan has been involved in a number of instances while in Immigration Detention.[18] The Tribunal has considered these in terms of both the written Client Incident Reports and the explanations given by Mr Karan in oral evidence. It does not believe that the matters reported are of such a nature as to count adversely to Mr Karan’s application.
[18] Ministerial Direction 65 at 13.1.1 (1)(h).
THE LEGISLATIVE SCHEME
Section 501(3A) of the Act provides that the Minister must cancel a persons’ visa in the following circumstances:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or...; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
This visa cancellation process is mandatory.
Section 501(6)(a) of the Act then provides that a person does not pass the character test if they have a “substantial criminal record”. Relevantly for this application, s 501(7)(c) provides:
7 For the purposes of the character test, a person has a substantial criminal record if:
(c)the person has been sentenced to a term of imprisonment of 12 months or more;
It can thus be seen clearly in relation to the Applicant that the cancellation of his visa was an automatic process: he was serving a sentence of imprisonment and further, he cannot meet the required “character test” because that term of imprisonment was for a period of greater than twelve months.
Once the original decision has been made the Minister must notify the person and give them an opportunity to respond to it.
Section 501CA of the Act outlines the process:
1 This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
2For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
3As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
It is up to the individual concerned to place before the Minister whatever information they think relevant for the Minister’s consideration. Upon receipt of such representations, the provisions of sections 501CA(4) and (5) come into effect as follows:
4The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
5If the Minister revokes the original decision, the original decision is taken not to have been made.
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.
It is thus clear that although the original decision-maker has found Mr Karan not to be a person of good character and to have determined that he fails the legislated character test – as indeed they had no capacity to do otherwise - in this instance that decision leads to the consideration of whether or not there is “another reason” why the visa refusal should be set aside. The original decision-maker has determined that no such reason exists, so it is now for the Tribunal to make its own decision in that regard.
In doing so, it is up to the Tribunal to assess the material before it and to assign it the weight and value it thinks appropriate. This view is clearly stated in the authorities:
“The weighing of various pieces of evidence is a matter for the Tribunal.”[23]
“In the end the criticisms made by the applicant of the Tribunal’s reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.”[24]
[23] SZJSS and Others v Minister for Immigration and Citizenship [2010] HCA 48: unanimous decision of the High Court.
[24] Abebe v Commonwealth (1999) 197 CLR 510 at page 580 per Gummow and Hayne JJ.
The scheme of the Act requires the Tribunal, as decision-maker, to have regard to what is called Ministerial Direction 65.
MINISTERIAL DIRECTION 65
Under section 499 of the Act, the Minister is authorised to issue Directions to decision-makers to guide them, by statement of government policy, as to how they should evaluate various matters which are outlined in the Act and which must be considered by decision-makers.
Ministerial Direction 65 was made on 22 December 2014. The Tribunal is required to take it into account and give it full and proper regard when making its own independent decision on a request for revocation of a visa cancellation. Failure to take proper account of the Direction will lead the tribunal into jurisdictional error.
[34] Authorities in this Court have expressly accepted that a failure to comply with ministerial directions made under s 499 can constitute a jurisdictional error.
[35] Several Full Court decisions have treated this particular Direction as not only binding on the Tribunal, but also as the source of potential jurisdictional errors for non-compliance.[25]
[25] Williams v Minister for Immigration and Border Protection [2014] FCA 674 per Mortimer J. Citations omitted.
However this is not entirely a black and white or automatic process.
As far back as 1979 the Full Federal Court held that:
“If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the tribunal to take into account in reviewing the decision. On the other hand, the tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision was, on the material before the tribunal, the correct and preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[26]
[26] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at [420].
In a further review of the same case, the then President of this Tribunal made it clear in relation to Ministerial discretion (as expressed in policy directions) that “His discretion cannot be so truncated by a policy as to preclude consideration of the merits of a specified class of cases.”[27]
[27] Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at [640].
In 1981 the Full Federal Court warned that:
“On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[28]
[28] Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 per Lockhart J at [651-652]. See also Frank J at [642] and Deane J at [646].
In 1985 the Tribunal noted:
“Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account”.[29]
[29] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 at [21].
In 1994 the Full Federal Court opined:
“it is right to say that the tribunal which operates as part of a continuum of administrative decision-making, is not bound by government policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review.”[30]
[30] Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13 at [28].
Most recently, Mortimer J, after a comprehensive review of the authorities on this matter
“…policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.”[31]
Nevertheless, this Direction is made under the provisions of the Act itself and the Tribunal’s obligation is to give it due weight and proper consideration when making its own assessments.
[31] G v Minister for Immigration and Border Protection (2018) FCA 1229 at [210].
This Tribunal draws heavily upon the recent decision by Senior Member P W Taylor SC in Aciek,[32] where the relationship between Ministerial Direction 65 and the statutory responsibilities of the Tribunal is stated with utmost clarity:
7. Direction no. 65 does not derogate from the Tribunal’s duty to reach the preferable decision in the particular case before it. The guidance it provides is intended to assist in reaching such a decision:- Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [50] per Robertson J. As the Minister submitted in that case
[35]... the Direction does not determine the law or alter the content of the law. Rather, it provides guidance and direction to decision-makers. Decision-makers are required to comply with the Direction but the Direction does not itself create, vary or remove rights, privileges or obligations. In particular, the Direction does not impose any limit on the matters that may be taken into account; properly construed, it does not stipulate the weight to be given to those matters in each and every case; and does not make relevant (in a mandatory sense) any consideration that is not already relevant by reason of the text and context of s 501 of the Migration Act.
[32] Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755.
Clearly Mr Karan has failed the character test, so this then brings into operation the schema of Ministerial Direction 65 in order to establish whether or not “another reason” exists to revoke the Delegate’s cancellation of the Applicant’s visa.
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.
Again, without access to relevant Drug Court records, the Tribunal also has to take note of the fact that in neither of the transcripts of court proceedings which are before it was the issue of Mr Karan’s mental health raised and considered[35].
[35] 501 – G Documents at [33]-[35] and [36]-[38] respectively.
The Tribunal appreciates that Mr Karan says that the experience in question was so traumatic that he never really spoke about it and did not even reveal it to his mother (she learned about it through other sources).
This is understandable but it does not assist the Tribunal which cannot safely proceed on the basis of Mr Karan’s own self-reported diagnosis.
The Tribunal also notes that there is no evidence, or indeed claims by Mr Karan that this bipolar condition impaired his functioning at work. He claimed to have been successfully engaged in the family business and to have discharged his managerial responsibilities without significant impediment.
SERIOUSNESS OF OFFENCES
Regardless of the aetiology, the Tribunal cannot but conclude that Mr Karan’s record of offences is serious. Although nobody has been seriously injured as a result of Mr Karan’s behaviour, many people have been put at risk. This applies not only to his driving record, which the Tribunal takes particularly seriously,[36] but also to the offence where he made false claims to a building licencing authority about the licence which he held to undertaken demolition work where, once again, other people could have been placed at risk.[37]
[36] Ahmed and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4458.
[37] This is the offence of “Use false instrument with intent” dealt with by way of imposition of significant fine ($8,500) Section 501 – G Documents at [26].
Mr Karan’s offences have involved acts of violence, dishonest behaviour and repeated driving offences for which he has attracted terms of imprisonment which the Tribunal cannot ignore or discount.
RISK OF REOFFENDING
The risk of an individual reoffending is determined, in large part, by such matters as whether they have demonstrated a genuine and meaningful degree of insight into the nature of their offending behaviour and what voluntary steps they have taken to address any of the underlying issues.
In Mr Karan’s case the evidence in relation to either of these matters is sparse. Mr Karan has, as far as is evident before the Tribunal, displayed little insight into the nature and consequences of his offending behaviour, rather relying on the excuse that his bipolar disorder was the basis of such behaviour. However when prescribed medication (Seroquel) which he agreed was helpful, he was significantly non-compliant when, in his own words, “there was no supervision”.
The same may be said in relation to his drug using behaviour. Despite the intervention of the Drug Court, and his completion of its programme, he relapsed. He was given the opportunity to participate in the methadone programme – one of proven effectiveness – but he chose to take himself off it.
He has a binge drinking problem but appears to have taken no steps to address this.
Likewise his anger management issues remain unaddressed.
The Tribunal is brought to the conclusion that, if allowed to remain in Australia there is a reasonable prospect that Mr Karan will offend again, and to the extent that this could involve acts of violence and further improper driving behaviour, the safety and wellbeing of the Australian community could be compromised.
The Tribunal weighs this consideration as adverse to Mr Karan’s application.
BEST INTERESTS OF MINOR CHILDREN
Clearly Mr Karan has two minor children and their welfare would be impacted were he to be removed from Australia, a matter conceded by the Minister.
The Tribunal has noted the letters sent by the children in support of their father,[38] telling the Tribunal of the extent to which they love him and miss his bring around. There is no reason to doubt neither their genuineness nor the evidence of both Mr Karan and his mother about his care and affection for them and, when possible, his provision of financial support.
[38] Section 501 – G Documents at [74] and [75].
There is however an unresolved matter in the Tribunal’s mind about Mr Karan’s relationship with the children’s mother. It appears that their relationship has not been an altogether placid one. She was involved (as victim) in both of the incidents of domestic violence discussed above and apparently the couple have been separated for some little time. Until recently she was living with Mr Karan’s mother, but a row between them led to her moving away from the family home and taking the children with her.
On 31 May 2018 Shelvina Karan wrote to the Department withdrawing all her previous statements of support for her husband’s visa revocation. She indicated that she was in the process of seeking a divorce; she claimed to be the victim of physical and psychological abuse from members of his family and finally that she had sole care and custody of the children. Her rather strident comments were to the effect that: “I have always taken care of my children … even in the absence of Amit”. She related Mr Karan’s history of drug addiction, driving offences, stealing and domestic violence and concluded that’ “I tried to support him as he depressed but our relationship wasn’t going anywhere and I don’t see a very [39]positive and bright future either for children or me with him.”
[39] Section 501 – G Documents at [76].
This correspondence was confirmed by officers of the Department who spoke directly to Shelvina Karan who further advised them that “I have moved out with the two children who are under my care, and I have nothing further to do with Amit.”[40]
[40] Ibid at [77].
However by email addressed to the Tribunal and dated 18 October 2018, Shelvina Karan now writes that:
“I was frustrated with the family situation and I lashed out on amit (sic).
2. I was very angry at amit.
3. after our discussions I want to state that I support him and please disregard my previous email dated 31 may 2018.”[41]
[41] Applicant’s Statement of Facts, Issues and Contentions at Tab [2].
In evidence Mr Karan said that he and his wife were reconciled and were he permitted to remain there would be a “prospect of getting back together” and that the situation would “sort itself out soon.”
For considerable periods of time Mr Karan has been absent from any meaningful role in the life and development of his children due to his repeated periods of imprisonment. No evidence was presented that the children had ever visited him in those places of incarceration or that he had maintained any serious form of contact with them on those occasions.
Nevertheless the Tribunal cannot but take note of the fact that Shelvina Karan did not appear before the Tribunal to give any evidence in support of her husband. Mr Karan remarked that this was due to the cost of child-care. The Tribunal finds this hard to take seriously. The two children are both in school and given the importance of the Tribunal hearing to the future wellbeing of the entire family it is not beyond the realms of possibility that some arrangement could have been made to accommodate Shelvina Karan’s evidence in person, or by telephone, during the course of the school day.
The Tribunal cannot but draw an adverse conclusion from the absence of Shelvina Karan in its proceedings.
Despite this, weight must be given to the best interests of the minor children counting in favour of Mr Karan’s application.
COMMUNITY EXPECTATIONS
Dealing with the expectations of the Australian community is always a difficult task for the Tribunal. Community expectations change over time and they vary according to the circumstances of each case. The Tribunal expects that they would be more favourable to people who have learned from previous experiences of offending and have made serious attempts to get their lives back together and to take active steps for their own rehabilitation. On the other hand they would be less inclined to view favourably those who have committed particular types of offences, persisted in offending behaviour and failed to take control of their own lives, seek rehabilitation and act responsibly.
The Direction itself gives only minimal guidance in the interpretation or application of this consideration. It states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because of the nature of the character concerns or offences are such that the Australian community would expect the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”[42]
[42] Direction 65 at 13.3.
In cases such as YNQY and BFXK the Federal Court and this Tribunal have noted that this criterion starts off from a position of being, ipso facto and indeed, by intention, unfavourable to the applicant.[43] However as was stated in BFXK the degree of this unfavourability is to be assessed in relation to the individual circumstances of each applicant and each case.
[43] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]; BFXK v Minister for Immigration and Border Protection [2018] AATA 886 at [126].
Deputy President Block outlined one of the inherent difficulties with this part of the Direction, saying it:
“is always difficult to interpret. It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into that Australian community, knowledge of the evidence before me. ….. I believe that the Australian community, so informed, would expect me to interpret the Direction in a humane fashion.”[44]
[44] Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 at [7].
In Murphy v Minister for Immigration and Border Protection[45], Senior Member P W Taylor SC wrote:
[58] When cl 13.3 is read as a whole, and applied in a context where all relevant considerations required to be taken into account (see cl 8(1)), it does point to the likelihood, but it does not dictate an inflexible conclusion, that community expectation will always call for non-revocation. Nor is to be taken as elevating community expectation to the status of a determinative consideration. It remains as a primary consideration, to which appropriate weight must be given. But what constitutes appropriate weight, and whether that weight is a determinative factor in the exercise of the revocation discretion, will depend on the totality of the relevant circumstances.”
[45] Murphy and Minister for Immigration and Border Protection [2018] AATA 750.
In The Trustee for the Fuzzy Events Unit Trust, Deputy President Justice Stevenson held that it was appropriate to give a “second chance” to an applicant, in large part, “in recognition (of) his life changes” [46] since he had been first convicted. The Deputy President noted that the efforts of the Applicant to change his behaviour and to seek to make a positive contribution to the community following his conviction was something which helped earn him the right to a second chance.
[46] The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273 at [65].
In his own written submission,[47] Mr Karan sought to draw the attention of the Tribunal to the comments made in Fasi[48] where Senior Member Taylor said:
When cl 13.3 is read as a whole, and applied in a context where all relevant considerations must be taken into account (see cl 8(1)), it may point to the likelihood, but it does not dictate an inflexible conclusion, that its deemed concept of “community expectation” requires a non‐revocation decision. The standard of community expectation to which cl 13.3 refers is self contained, in the sense that it does not contemplate an empirical enquiry…. But the Tribunal’s consistently taken approach is that permissibly relevant considerations extend to include an appropriate degree of the tolerance contemplated by the Principles articulated in Direction no 65, having regard to the particular circumstances. The underlying proposition is that the exercise of the revocation discretion permits regard to the (necessarily suppositious) expectations of “reasonable fair‐minded citizens acquainted with all the facts”.
[47] Applicant’s Statement of Facts, Issues and Contentions at Tab [1].
[48] Fasi and Minister for Home Affairs (Migration) [2018] AATA 4049 at [100].
What counts in this area against Mr Karan is not only the individual circumstances of repeated offending but the lack of his taking what might be seen as positive steps to turn his life around which some of the determinations refer to. Similarly in his submission Mr Karan himself cites a number of cases in reference to which he states: “The seriousness of my conduct is not an issue compared to these.” [49] A reading of the circumstances of the cases cited does not lend support to Mr Karan’s proposition.
[49] Applicant’s Statement of Facts, Issues and Contentions at Tab [1].
A balanced consideration of all the facts discussed above would clearly lead the Tribunal to conclude that this consideration weighs against Mr Karan’s application.
OTHER CONSIDERATIONS
The Tribunal must then go on to consider what are outlined in the Direction as “other” considerations. As Colvin J has made clear in Suleiman that, “To treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.”[50] His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant[51].
[50] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28].
[51] Ibid at [26].
This was made more explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
“… factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.”[52]
[52] CHFQ and Minister for Home Affairs (Migration) (2018) AATA 3858 at [88].
The “other” consideration in the Direction, in relation to visa applications[53] are:
·International non-refoulement obligations;
·Strength, nature and duration of ties;
·Impact on Australian business interests;
·Impact on victims; and
·Extent of impediments if removed.
[53] Direction 65 section 12.
The Tribunal does not regard it as necessary to deal with matters related to the non-refoulement obligations, the impact on victims or the impact on Australian business interests. While Mr Karan did submit, as part of his application, an article on racial discrimination in Fiji and a United States Department of State report on “Fiji 2016 Human Rights Report”, no further references were made to these and no claims related to non-refoulement obligations were mentioned.[54]
[54] Applicant’s Statement of Facts, Issues and Contentions at Tabs [4] and [5].
TIES TO AUSTRALIA
There is no doubt that Mr Karan has spent most of his life in Australia, having arrived here aged 17 years and now having ben resident (with some minor departures) for 22 years. The Tribunal accepts that his family (mother, brothers, wife, children, and an extended network of relatives) are here and that he has no significant family relationships in Fiji.
In this respect the Tribunal noted the letter of support from Mr Karan’s mother (Mrs Lalita Kumar)[55] and the sincere testimony which she gave to the Tribunal about her commitment to his future wellbeing. In regard to the letter of support which is dated 31 October 2017 Mrs Lalita Kumar makes the point that since the death of her husband the family has faced financial difficulties. Her letter expresses an expectation that Mr Karan and his wife will reside with her to provide support especially since her younger son was about to get married and leave in the family home. In the event, it transpires that the younger son has married and that his wife has moved into the family home with Mrs Kumar as that Shelvina Karan has moved out after a family dispute.
[55] Section 501 – G Documents at [70]-[71].
Apart from reference to his working in his father’s business, there is no evidence before the Tribunal of Mr Karan’s long-term employment history in Australia. It would have helped Mr Karan’s case had he been able to provide such evidence. Similarly, there is nothing to suggest that Mr Karan has made any particular contribution to the Australian, ex-patriate Fijian or any other community in Australia. He has no record of community service or contribution above helping to organise a charitable function for the Ingleburn Ramayan Mandali and Cultural Organisation some years ago.[56]
[56] Section 501 – G Documents at [73].
Once again, this matter must be determined on balance and the Tribunal finds that all Mr Karan’s significant ties are to Australia and that while he is no stranger to life and society in Fiji, this consideration weighs in his favour.
EXTENT OF IMPEDIMENTS IF REMOVED
Mr Karan suffers from a number of health problems. Some of them involve matters of mental health, namely a diagnosed PTSD and (possibly) undiagnosed bipolar disorder. In addition he uses Ventolin and Seretide for is asthma and has been diagnosed with ulcerative colitis. Furthermore it is reported that he uses oxycodone as a pain-killer for back injuries, although this drug is subject to serious misuse if doses are exceeded as it is a powerful opioid.[57]
[57] Ibid at [237].
It was a matter of some contention between the parties as to the degree which Mr Karan could access suitable medication were he to be returned to Fiji. Mr Karan submitted a report from the Fiji Ministry of Health listing available medications as per publication in June 2013[58] and the Minister submitted the “Fiji Essential Medicines List” from the same source dated April 2015.[59]
[58] “Fiji: Pharmaceutical Country Profile,” Applicant’s Statement of Facts, Issues and Contentions at Tab [6].
[59] Respondent’s Statement of Facts, Issues and Contentions attachment.
Examination of the list appears to suggest that most of Mr Karan’s prescribed medications would be harder to access in Fiji than in Australia. For example, Seroquel is not listed as available, however Chlorpromazine (often used for similar purposes) is. Oxycodone is not on the Fiji list; however an ever more potent pain-killer, Fentanyl is.
Mr Karan is currently on the opioid substitution programme with his methadone treatment and it does not appear that methadone is available in Fiji for such purposes. While it is listed in the 2015 Essential Medicines document, it is shown as being available in 5mg tablets which are not suitable as an opioid substitution alternative and their prescription appears to be limited to use in instances related to “mental illness and related disorders” and “palliative care in paediatric oncology.”[60]
[60] The document in question is attached to the Respondent’s Statement of Facts, Issues and Contentions.
There is no evidence before the Tribunal that Mr Karan would have access to an effective opioid substitution programme in Fiji, although it is recognised that this is not the only way to deal with issues of drug addiction and many nations specifically reject its use in this fashion.
In relation to other factors, the Tribunal has no doubt that Mr Karan has skills and qualifications which will serve him well for possible future employment. Equally his early life in Fiji and his frequent visits back there bespeak of a familiarity and understanding of the culture, mores and values of that community.
Fiji has recently held elections which were regarded by the international community as fair, open and democratic and there is no reason to draw adverse conclusions about the overall situation in Fiji at this present day. The Tribunal also recognises that although Fiji is overwhelmingly a Christian country, there is no evidence that members of the Hindu faith are impeded in practicing their religion without discrimination.
Mr Karan drew attention to where the Tribunal recently determined a case in somewhat similar circumstances revoking a visa cancellation on the basis that the individual concerned would suffer health disadvantage if repatriated.[61] The difference between that case and this, which is an important distinction, is that the individual in that case had not committed offences as serious as those committed by Mr Karan and had not been involved in any acts of violence. He was also on a structured programme for the management of his mental health condition and was fully compliant with his medication and treatment regimes. It was on the basis of possible interruption to this regime that the Tribunal made its decision for visa cancellation revocation.
[61] Rowe and Minister for Home Affairs (Migration) [2018] AATA 2708.
On balance however, it must be concluded that there would be some disadvantage and impediment suffered by Mr Karan is returned to Fiji on the basis of his health status.
CONCLUSION: THE INEVITABLE CALCULUS
Analysis of all the individual considerations before the Tribunal produces the following outcome:
Primary considerations of the protection of the Australian community and respect for the expectations of that community weigh quite heavily against visa revocation.
The primary consideration of the best interest of minor children and the two “other” considerations of ties to Australia and impediments if removed weigh in favour of visa revocation.
The exquisite dilemma for the Tribunal where cases are not clear-cut one way or another is to make the “calculus” (a term used by the Federal Court[62]) between the relative weights of the competing claims.
[62] Contreras v Minister for Immigration and Border Protection [2105] FCAFC 47 at [52].
This is one case where the Tribunal feels that the wider interests of the whole community must prevail over the interests of this individual applicant. There is no doubt Mr Karan has faced many difficulties in his life, not that he is alone in this. Nor is there any doubt that his involvement in drugs has been an entirely negative experience for him. He has, however been granted a second chance by the Minister on a previous occasion and he has had several chances offered to him through the mechanisms and programmes of the Drug Court. That he has not taken advantage of any of these second chance opportunities is a failure that lies squarely at his own feet.
The Tribunal appreciates that a deep seated trauma such as that Mr Karan claims to have experienced as an adolescent can have a devastating impact on the future course of an individual’s’ life. Nevertheless there are treatments and therapies available if people seek to avail themselves, although this does require an admission of things, even to oneself, which are painful and acute.
The Tribunal has, on several occasions, noted that there is actually no diagnosis before it from a competent practitioner that Mr Karan suffers from some form of bipolar disorder as distinct from PTSD.
They are different manifestation of mental unwellness and their symptomology presents differently. The principal characteristics of PTSD relate to individuals being quick tempered and possibly aggressive, they may be reckless in their behaviour and often have sleep problems.[63] To the extent that Mr Karan fits some of these descriptors the Tribunal notes that his failure to follow a medication regime which apparently helps alleviate such problems is most unfortunate and has, almost certainly, contributed to his further offending.
[63] American Psychiatric Association Diagnostic and statistical manual of mental disorders (5th ed, 2013) (Washington, DC, at pages [275]-[276].
In any event the Tribunal finds it hard to assign to either diagnosis a basis for Mr Karan’s driving, dishonesty or violence offences.
The Tribunal cannot ignore either Mr Karan’s criminal record per se nor the imposition of custodial sentences, a last resort in the criminal justice system.
In terms of the various considerations therefore the Tribunal comes to the conclusion that the two primary considerations of community protection and expectations outweigh the primary consideration of the best interests of the minor children and the other considerations of community attachment and possible impediment on return, to a sufficient degree as to reject Mr Karan’s application for his visa cancellation to be revoked.
DECISION
The decision under review is affirmed.
I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...............................[sgd].........................................
Associate
Dated: 4 December 2018
Date(s) of hearing: 26 November 2018 Applicant: In person Solicitors for the Respondent: Ms R Noronha, Clayton Utz
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