Karan v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Karan v Minister for Home Affairs [2019] FCAFC 139

Appeal from: Karan v Minister for Home Affairs [2019] FCA 478
File number: NSD 665 of 2019
Judges: RARES, GRIFFITHS AND BURLEY JJ
Date of judgment: 19 August 2019
Catchwords: MIGRATION – appeal from judgment and orders of a single judge of the Federal Court of Australia dismissing an application for judicial review of a decision not to revoke mandatory cancellation of the appellant’s resident return visa – where the appellant claimed that he was denied procedural fairness before the Administrative Appeals Tribunal (AAT) due to its failure to make inquiries as to whether he had the requisite capacity to represent himself – where the appellant had a history of mental health issues and substance abuse – where no evidence adduced at first instance or on appeal that had the AAT made enquiries it would have found the appellant lacked or may have lacked requisite capacity– no appealable error – appeal dismissed, with costs
Legislation: Migration Act 1958 (Cth) ss 360, 501(3A), 501CA(4)(b)(ii)
Cases cited:

Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd [2009] WASCA 33

BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49; 260 FCR 116

Goddard Elliott v Fritsch [2012] VSC 87

Karan v Minister for Home Affairs [2019] FCA 478

Minister for Immigration and Border Protect vWZARH [2015] HCA 40; 256 CLR 326

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12

Minister for Immigrations and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553

NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 983; 76 ALD 56

Picard v Minister for Immigration and Border Protection [2015] FCA 1430

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parteLam [2003] HCA 6; 214 CLR 1

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152

SZMSA v Minister for Immigration and Citizenship [2010] FCA 345
Date of hearing: 19 August 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 34
Solicitor for the Appellant: Mr M E Arch of Christopher Levingston & Associates
Counsel for the Respondents: Mr G Johnson
Solicitor for the Appellant: Clayton Utz

ORDERS

NSD 665 of 2019
BETWEEN:

AMIT KARAN

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGES:

RARES, GRIFFITHS AND BURLEY JJ

DATE OF ORDER:

19 AUGUST 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed. 

2.The appellant pay the first respondent’s costs, as agreed or taxed. 

Note:   Entry of orders is dealt with…

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Details
Case
[2019] FCAFC 139
Decision Date

CaseChat Overview and Summary

The appeal in Karan v Minister for Home Affairs was brought by the appellant, a Fijian citizen with a history of substance abuse and mental health issues, against the decision of a single judge of the Federal Court of Australia to dismiss his application for judicial review of the decision not to revoke the mandatory cancellation of his resident return visa. The appellant argued that he was denied procedural fairness before the Administrative Appeals Tribunal (AAT) due to its failure to make inquiries as to whether he had the requisite capacity to represent himself. The appellant's case was that he was not competent to argue his case before the AAT and that the AAT's lack of formal evidence regarding his mental health demonstrated a tendency to require formal evidence in the exercise of its statutory powers.

The court had to decide whether the AAT failed to afford the appellant procedural fairness or did not comply with s 360 of the Migration Act 1958 (Cth) (the Act). The court rejected the appellant's claim that the AAT failed to make enquiries into his capacity to represent himself. The court noted that the Act does not provide for any competency requirement, and that the rules of procedural fairness may require special steps or procedures in individual cases. However, the court held that no such steps or procedures were required in the circumstances of this case, as there was no evidence before the AAT or the Court on judicial review to show that the appellant's medical conditions adversely affected his capacity to participate in the AAT proceedings.

The appeal was dismissed, with costs. The appellant was ordered to pay the first respondent's costs, as agreed or taxed. The court noted that it was in the same position as the primary judge in not knowing what the outcome of any further inquiries might have been.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs, as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the following reasons, the appeal will be dismissed, with costs. Summary of background facts The appellant is a Fijian citizen. He arrived in Australia in December 1990 when he was approximately 12 years old. It is uncontested that he has had significant problems with illicit drugs and has a conspicuously lengthy criminal history. He started smoking marijuana when he was about 18 years old and then began using heroin almost daily over a period of many years. It is also uncontested that he has engaged in regular bouts of binge drinking. His lengthy criminal history began in November 1998. As the primary judge noted, the appellant has appeared before the courts on at least 30 separate occasions and has been convicted or found guilty of at least 75 offences. It is uncontested that the appellant has suffered from various mental health issues and that he was subjected to sexual abuse when he was aged 15. He has been diagnosed as having Post Traumatic Stress Disorder (PTSD). He has been prescribed medication to address his “depressive/mental health issues” and his diagnosed PTSD. The appellant has acknowledged that he has been non-compliant with these prescription regimes. The appellant uses Oxycodone as a painkiller for his back injuries. The appellant’s Subclass 155 “Resident Return Visa” was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act). The appellant sought to have the mandatory cancellation decision revoked. This application was considered by the Minister’s delegate. The delegate’s decision was challenged by the appellant in the Administrative Appeals Tribunal (AAT), primarily on the question whether there was “another reason” within the meaning of s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation decision. The delegate was satisfied that the appellant failed the character test and was serving a full-time sentence of imprisonment in a custodial institution for offences against Australian law. In particular, on 6 March 2017, the appellant was convicted in the Local Court of New South Wales of Drive Motor Vehicle During Disqualification Period – 2nd + Off, and was sentenced to 18 months imprisonment (which sentence was reduced on appeal to 16 months). The delegate was not satisfied that there was “another reason” for revoking the cancellation decision. The appellant represented himself in the AAT. The AAT dismissed the review application, for reasons which are sufficiently summarised by the primary judge in [7] to [13] of his Honour’s reasons for judgment and need not be repeated here. Primary judge’s reasons for judgment summarised The single ground of judicial review below was whether the AAT failed to afford the appellant procedural fairness or did not comply with s 360 of the Act. This was particularised by reference to the fact that the applicant was unrepresented and had a history of alcohol and drug addiction and mental illness and it was claimed that he was not competent to appear and argue his case before the AAT. Further, it was claimed that the AAT’s complaint that there was a lack of formal evidence with regard to the appellant’s mental health demonstrated a tendency on the AAT’s part “to require formal evidence in the exercise of its statutory powers notwithstanding the general statutory injunction that the [AAT] was not bound by the rules of ‘evidence’”. Further, it was claimed that the AAT’s proceedings were not conducted in accordance with the AAT’s duty as an “inquisitor” as opposed to a contradictor.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The AAT dismissed the review application, for reasons which are sufficiently summarised by the primary judge in [7] to [13] of his Honour’s reasons for judgment and need not be repeated here. Primary judge’s reasons for judgment summarised The single ground of judicial review below was whether the AAT failed to afford the appellant procedural fairness or did not comply with s 360 of the Act. This was particularised by reference to the fact that the applicant was unrepresented and had a history of alcohol and drug addiction and mental illness and it was claimed that he was not competent to appear and argue his case before the AAT. Further, it was claimed that the AAT’s complaint that there was a lack of formal evidence with regard to the appellant’s mental health demonstrated a tendency on the AAT’s part “to require formal evidence in the exercise of its statutory powers notwithstanding the general statutory injunction that the [AAT] was not bound by the rules of ‘evidence’”. Further, it was claimed that the AAT’s proceedings were not conducted in accordance with the AAT’s duty as an “inquisitor” as opposed to a contradictor. The primary judge rejected the appellant’s invitation to address his judicial review case by reference to the notion of jurisdictional facts. His Honour stated at [26] that the question whether or not a person has the capacity to participate in a proceeding should not be characterised as a jurisdictional fact, referring to NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 983; 76 ALD 56 and SZMSA v Minister for Immigration and Citizenship [2010] FCA 345 and Minister for Immigrations and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553. At [29], the primary judge identified the central question as whether the proceedings before the AAT in fact miscarried. This meant that the “necessary emphasis is not so much on what occurred in the proceedings in the Tribunal but on what is now shown to have been the capacity of the applicant to participate in the Tribunal proceedings”, adding that while it was relevant that the appellant did not claim unfitness or incapacity before the AAT, this was not conclusive (at [30]). The primary judge cited a passage from the Full Court’s decision in BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49; 260 FCR 116 at [43], which should be repeated:Applicants who assert that their psychological condition deprived them of the “meaningful opportunity” required by s 425 of the Migration Act must establish more than the fact of the condition. They must also establish that their condition is such as to deny them the capacity to give an account of their experiences, to present argument in support of their claims, and to understand and respond to the questions put to them: SZMSA v Minister for Immigration & Citizenship [2010] FCA 345 at [20]–[25] and [32]–[35] (Gilmour J); SZNVW at [20] (Keane CJ). Further, even when psychological evidence may, had it been available to the Tribunal, have led it to take a different view of the credibility of an applicant’s account, the absence of that evidence does not, of itself, establish that the hearing before the Tribunal proceeded on a false assumption about the applicant’s ability to give evidence and to present arguments relating to the issues arising in relation to the decision under review: SZNVW at [19]. Generally, it is insufficient for applicants to show no more than that a medical condition may have deprived them of the ability to put their case to best advantage.

Ratio Decidendi

Legal Principle Established

In substance, the notice of appeal reflects the single ground of judicial review which was run unsuccessfully below:The second Respondent denied the Appellant procedural fairness by failing to make enquiries as to whether the Appellant had the requisite legal capacity to act on his own behalf and by failing to make positive findings that the Appellant was indeed in a fit state to represent himself in the proceedings before the second Respondent. Consideration and disposition The appellant’s complaint that the primary judge only selectively quoted from the passage from the joint judgment of Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[2004] HCA 32; 207 ALR 12 at [45] is rejected (see [26] of the primary judge’s reasons for judgment). The primary judge was correct to point out that in SGLB the High Court rejected competency as a jurisdictional requirement in a Tribunal-setting. The full relevant text at [45] of SGLB is as follows (emphasis added to highlight the sentence not quoted by the primary judge) (footnotes omitted):The third alleged error presupposes that there is some competency requirement as to the satisfaction of which the Tribunal must be convinced before an applicant can take part or continue to take part in proceedings before the Tribunal. This assumption is without foundation. The Act does not provide for any such competency requirement, analogous, for example, to that of fitness to plead. Section 420(2)(a) of the Act expressly provides that the Tribunal is not bound by the rules of evidence. The phrase "the rules of evidence" is taken to include both the common law rules of evidence and the Evidence Act 1995 (Cth). The only requirements that could be described as competency requirements are that an application for review by the Tribunal can only be made by a non‑citizen who is the subject of the primary decision (by the Minister's delegate) and who is physically present in the migration zone when the application for review is made. The Act permits an application for a protection visa to be made by any person who is in Australia and who is not a citizen of Australia. That is not to deny that the rules of procedural fairness may, in particular circumstances arising in individual cases before the Tribunal, require some special steps or procedure to be followed. But there was no denial of procedural fairness in the present case The primary judge was plainly aware that, depending upon the particular facts and circumstances of an individual case, procedural fairness requirements may require special steps or procedure to be adopted in order to provide procedural fairness (see, for example, [26] to [28] of his Honour’s reasons for judgment). The essential point remains, however, that the primary judge considered that no such steps or procedures were required in the particular circumstances here, not the least because there was no evidence before either the AAT or the Court on judicial review to show that the appellant’s medical conditions adversely affected his capacity to participate in the AAT proceeding, applying the approach which had been approved by the Full Court in BJB16. It might be noted in this respect that, although the primary judge made orders on 6 February 2019 which provided the appellant with an opportunity to file affidavit evidence in support of his judicial review application, he failed to do so. This Court is in the same position as the primary judge in not knowing what the outcome of any further inquiries might have been.