FEDERAL COURT OF AUSTRALIA

Karan v Minister for Home Affairs [2019] FCAFC 139

ORDERS

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 in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This appeal is from orders dated 10 April 2019 and the reasons for judgment of a single judge of this Court which is reported as Karan v Minister for Home Affairs [2019] FCA 478.

2    For the following reasons, the appeal will be dismissed, with costs.

Summary of background facts

3    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.

4    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.

5    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.

6    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.

7    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.

8    The appellant represented himself in the AAT.

9    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

10    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.

11    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]).

12    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.

13    In the light of that authority, his Honour concluded that the appellant’s case was not made out, simply because there was no evidence before the Court to show that the conditions from which the appellant suffered adversely affected his capacity to participate in the AAT proceedings.

14    His Honour then explained at [34] ff why the appellant’s reliance on cases such as Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd [2009] WASCA 33 and Goddard Elliott v Fritsch [2012] VSC 87 was misplaced, noting that those cases dealt with proceedings in a court, as opposed to a tribunal and also turned on their own facts. His Honour reiterated at [34] that there were not facts before the AAT which indicated that the applicant’s capacity to proceed was or may have been affected.

15    After referring to what the Full Court said in BJB16 at [48], the primary judge found that there was no evidence before him of either a transcript or an audio recording of the AAT’s hearing, nor any evidence which demonstrated that any of the appellant’s medical issues meant that he did not, or might not, have the capacity to participate in the AAT proceeding or which demonstrated that the AAT was put on notice that he did not, or might not, have that capacity. Indeed, the appellant had not raised the question of his capacity to participate in the proceedings before the AAT.

16    In those circumstances, the primary judge concluded at [38] that he did not accept that the AAT fell into jurisdictional error in failing to make inquiries into the appellant’s capacity to participate in the proceeding before it. This conclusion was reached after analysing the High Court’s observations in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429.

17    The primary judge did not accept the appellant’s contention that the AAT failed to make an obvious inquiry or that any such inquiry could have yielded a useful result.

18    As to the appellant’s complaint that the AAT erred in requiring formal evidence notwithstanding the statutory injunction that it was not bound by the rules of evidence, the primary judge concluded at [41] that the AAT did not have any medical material before it which linked the appellant’s conditions to any incapacity on his part to participate in the proceedings.

Notice of appeal

19    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

20    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.

21    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

22    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.

23    The appellant claims that the “special steps or procedures” in the present case “should include a threshold enquiry by the [AAT] to confirm that the applicant does indeed have capacity”. There are two reasons why that submission must be rejected. First, the appellant does not identify the legal source of any such obligation. Secondly, and perhaps more significantly, as the primary judge found, there was neither any evidence, nor any suggestion by the appellant, before the AAT that he suffered from any particular ailment which impacted on his competency or capacity to participate in the proceeding. As mentioned, no copy of the transcript of the AAT proceeding was put in evidence either below or on the appeal.

24    As Gleeson CJ observed in SGLB at [19]:

Many people who appear before administrative tribunals, and many litigants in courts, including some litigants in this Court, suffer from psychological disorders or psychiatric illness. That may affect their capacity to do justice to their case. Fairness does not ordinarily require the court or tribunal to undertake a psychiatric or psychological assessment to investigate the extent to which the person in question may be at a disadvantage; and ordinarily it would be impossible to tell…

25    Contrary to the appellant’s submission, the primary judge did not err in distinguishing SCAR on the basis that it arose in the context of a different statutory context. As the High Court observed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [26], the content of the obligation of procedural fairness is to be determined having regard inter alia to the statutory context. As was observed by Tracey J in Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [31], the Minister as an administrative decision-maker (and, it may be interpolated, that the AAT in the exercise of its review function under s 500(1)(ba)) is bound to accord procedural fairness to a person when dealing with the person's application for revocation under s 501CA(4) of the Act. That is not to say, however, that the requirements of procedural fairness will always be the same under those review processes. It is well settled that the AAT’s function under s 425 is inquisitorial. Different procedures are involved in an AAT review under s 500(1)(ba).

26    That is not to deny that in conducting a review under s 500(1)(ba) procedural fairness requirements may oblige the AAT to adopt “special steps or procedure”, including where there is evidence that the review applicant does not, or might not, have the capacity to participate in the proceeding. Equally, there may be sufficient material in a particular case so as to put the AAT on notice that the review applicant did not, or might not, have that capacity, which may require the AAT to inquire about the matter. It is plain from [37] of the primary judge’s reasons for judgment that his Honour acknowledged these possibilities.

27    The fundamental flaw with the appellant’s case, both below and on appeal, is that the appellant has not demonstrated how the evidence or the appellant’s circumstances or presentation before the AAT suggested that the appellant did not, or might not, have the capacity to participate or that the material was sufficient to put the AAT on inquiry about these matters, as the primary judge explicitly found at [34], [37] and [38] of his reasons for judgment. The appellant drew the Court’s attention to a “medication summary” dated 18 August 2017, which stated that the appellant had been prescribed Quetiapine medication which is recorded as “Clears your thoughts and has a calming effect”. This does not advance his case having regard not only to the date of the summary (which precedes the AAT hearing by more than 12 months) but also because a subsequent medical record dated 3 January 2018 makes no reference to the appellant having been prescribed that medication at that time. Finally, and in any event, it might also be noted that the AAT had before it evidence that the appellant did not always take the medication which was prescribed for him.

28    The appellant’s contention that the primary judge erred in his consideration of Allregal and Goddard Elliott is rejected. As the Minister pointed out, the appellant has not articulated why the primary judge erred in distinguishing those cases by reference both to their facts and to the circumstances of each of them. In the former case, there was evidence that the relevant person had conducted various other proceedings through a “next friend” which put the Court on notice that there was a history of incapacity. As to the latter case, the observations relied upon by the appellant arose in the context where a Court had been put on notice by evidence that a person may not have the capacity to manage his or her own affairs. That is not the case here.

29    The appellant takes issue with the primary judge's rejection of the argument that the principles in SZIAI applied in the present context. In SZIAI at [25], the High Court stated (emphasis added):

The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

30    We reject the appellant’s complaint that SZIAI is distinguishable because “there was an obvious inquiry that should have been undertaken, and such an inquiry would clearly have yielded a useful result”. As we have emphasised, it is telling that the appellant did not adduce any evidence below (or seek to have admitted on the appeal fresh evidence) which established that “a useful result” would have been accomplished if the AAT had made inquiries, namely that he lacked the requisite mental capacity to participate effectively in the AAT proceedings.

31    As found by the primary judge, the appellant has given no indication as to what “useful result” might have ensued from the inquiry he submits was required in the circumstances. At [41] his Honour observed that “the Tribunal did not have any medical material before it linking the applicant's conditions to any incapacity on his part to participate in the proceedings”. This was not a case where a failure to make an enquiry amounted to a jurisdictional error. No appealable error by the primary judge is made out.

32    We reject the appellant’s contention to the effect that, because the question of capacity to conduct his case arises at the time of the AAT proceeding, there was no point obtaining medical evidence after that time. This contention erroneously assumes that an appropriately qualified medical specialist would be unable to express an opinion retrospectively having regard to the entirety of the appellant’s medical history and mental state.

33    An alternative way of arriving at the same conclusion in this appeal is to apply the concept of “practical injustice” which is a fundamental concern of procedural fairness (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [38] per Gleeson CJ; Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [82] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ; Minister for Immigration and Border Protect v WZARH [2015] HCA 40; 256 CLR 326 at [57] per Gageler and Gordon JJ and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [38] per Bell, Gageler and Keane JJ). The concern of procedural fairness is with practical injustice, not theoretical or hypothetical injustice, which is the way in which the appellant has presented his case of procedural unfairness.

Conclusion

34    For these reasons, the appeal should be dismissed, with costs. The Court expresses its gratitude to Mr M E Arch and Christopher Levingston & Associates for acting for the appellant on a pro bono basis.

Associate:

Dated:    19 August 2019