FEDERAL COURT OF AUSTRALIA
Karan v Minister for Home Affairs [2019] FCA 478
Review of: Karan v Minister for Home Affairs [2018] AATA 4480 File number: NSD 2326 of 2018 Judge: ROBERTSON J Date of judgment: 10 April 2019 Catchwords: MIGRATION – application for judicial review of decision of the Administrative Appeals Tribunal – references in Tribunal’s reasons to applicant’s mental health, namely a diagnosed PTSD and (possible) undiagnosed bipolar disorder and to substance abuse – whether jurisdictional error on the part of the Tribunal in assuming, and not inquiring into, applicant’s capacity to participate in the Tribunal proceedings and not making positive findings as to applicant’s fitness Legislation: Migration Act 1958 (Cth) ss 360, 425, 500(1), 501CA(4) 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
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12
NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 983; 76 ALD 56
SZMSA v Minister for Immigration & Citizenship [2010] FCA 345
Date of hearing: 10 April 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 42 Solicitor for the Applicant: Mr ME Arch of Christopher Levingston & Associates Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent submitted to any order of the Court, save as to costs ORDERS
NSD 2326 of 2018 BETWEEN: AMIT KARAN
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
10 APRIL 2019
THE COURT ORDERS THAT:
1.The application for judicial review of the decision of the Administrative Appeals Tribunal made on 4 December 2018 is dismissed.
2.The applicant pay the costs of the first respondent, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ROBERTSON J:
Introduction
This application is for judicial review of a decision of the Administrative Appeals Tribunal made on 4 December 2018 affirming the decision there under review.
The decision under review was made by a delegate of the Minister for Home Affairs and notified on 12 September 2018, refusing to revoke under s 501CA a decision made by a different delegate of the Minister on 5 July 2017 to cancel Mr Amit Karan’s subclass 155 resident return visa because of his “substantial criminal record”.
The Tribunal was concerned primarily with whether it was satisfied that there was “another reason” within the meaning of s 501CA(4)(b)(ii) of the Migration…
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- Case
- [2019] FCA 478
- Decision Date
CaseChat Overview and Summary
The court examined whether the AAT erred by not positively inquiring into the applicant's capacity to participate in the proceedings. The AAT's decision was based on the applicant's oral testimony about his mental health conditions and substance abuse. The court found no evidence before the AAT linking the applicant’s conditions to any incapacity on his part to participate in the proceedings. The court held that the AAT did not make a jurisdictional error by not inquiring into the applicant's capacity, as the AAT had no obligation to do so without any evidence of incapacity being presented. The court also dismissed the contention that the AAT had a tendency to require formal evidence, noting that the AAT had not been bound by such rules in its consideration of the applicant's testimony.
Consequently, the application for judicial review was dismissed. The court ordered that the applicant pay the costs of the proceeding as agreed or assessed. This decision underscores the importance of the applicant presenting evidence of their incapacity to participate in proceedings for the AAT to consider, and that the AAT is not obligated to proactively inquire into such matters in the absence of such evidence.
Orders
Orders of the court
1. The application for judicial review of the decision of the Administrative Appeals Tribunal made on 4 December 2018 is dismissed.
2. The applicant pay the costs of the first respondent, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The ground in the application for judicial review, as amended in the course of the hearing, was as follows:1.The Respondent failed to afford the Applicant procedural fairness or did not comply with s 360 of the Migration Act.Particulars(a)The Applicant was unrepresented and has a history of alcohol and drug addiction and mental illness and was not competent to appear and argue his matter before the Respondent.(b)The conduct of the proceedings generally and the Respondent's complaint about the lack of formal evidence with respect to the Applicant's mental health demonstrated a tendency on the part of the Respondent to require formal evidence in the exercise of its statutory powers notwithstanding the general statutory injunction that the Respondent was not bound by the rules of “evidence”.(c)The proceedings as conducted by the respondent were not conducted in accordance with the duty of the respondent as an Inquisitor but rather as a contradictor.The applicant accepted that he did not raise before the Tribunal the question of his capacity but submitted that that issue was self-evident or obvious. Argument proceeded on the basis that the applicant claimed that the Tribunal erred in failing positively to inquire into, and make findings as to, the applicant’s capacity to participate in the Tribunal proceedings.The Tribunal’s reasons The Tribunal found that Mr Karan had 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 admitted to using heroin almost “daily” over a period of many years. As part of his rehabilitation programme through the Drug Court, Mr Karan had been on the methadone programme and was 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. The Tribunal found that Mr Karan admitted to regular bouts of binge drinking. The Tribunal found Mr Karan had also been prescribed Seroquel to deal with some of his depressive/mental health issues, although, as with the methadone, he had frequently been non-compliant with his medication regime. When pressed on this matter in the Tribunal 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”. The Tribunal found that Mr Karan had a long and extensive criminal history of offending which began in November 1998, the year he arrived in Australia. It had continued right up until his most recent offence in March 2017. He had appeared before the courts on at least 30 separate occasions and been convicted or found guilty of at least 75 offences. The Tribunal found it was as a result of the intervention of the Drug Court 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 the relevant material before that Court, 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 he was released by the Drug Court subject to his undertaking drug and alcohol counselling interventions. The respondent in the Tribunal pointed out “that there is no independent or authoritative evidence demonstrating that the Applicant has participated in any drug or alcohol counselling programs”.