FEDERAL COURT OF AUSTRALIA

Karan v Minister for Home Affairs [2019] FCA 478

ORDERS

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

1    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.

2    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”.

3    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 Act 1958 (Cth) to revoke the original decision, being the cancellation of the applicant’s visa.

4    The Tribunal heard the application on 26 November 2018. The applicant was then self-represented.

5    As found by the Tribunal, Mr Karan was born in 1978 in Fiji and is a Fijian citizen. He arrived in Australia for the first time during December 1990.

The present application

6    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

7    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.

8    The Tribunal found that Mr Karan admitted to regular bouts of binge drinking.

9    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”.

10    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.

11    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”.

12    The Tribunal said the following in relation to the present issue, at [55] and following:

55.    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.

56.    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.

57.    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.”

58.    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.

59.    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.

60.    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).

61.    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.

62.    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.

    (Footnotes omitted.)

13    The Tribunal continued:

100.    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.

101.    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 and the Minister submitted the “Fiji Essential Medicines List” from the same source dated April 2015.

102.    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.

103.    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.”

104.    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.

    (Footnotes omitted.)

The parties’ submissions

14    The applicant submitted that notwithstanding the evidence that he suffered from numerous conditions that may have impaired his mental health and cognitive ability and thus his legal capacity – including his history of drug and alcohol abuse, his Post Traumatic Stress Disorder, his claimed bipolar disorder, his non-compliance with his medical regimes for his depression/mental illness and claimed bipolar disorder and his apparently ongoing use of Oxycodone – the record of the Tribunal proceedings was devoid of any indication that the Tribunal made any form of inquiry whatsoever, or that it made any findings of any kind, as to the applicant’s fitness to proceed as a self-represented litigant.

15    The applicant submitted it was a fundamental precondition of the lawful exercise of the Tribunal’s jurisdiction that applicants appearing before it have the requisite degree of mental competency, or “legal capacity”: as the applicant submitted was held in 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, “fitness to give evidence before the Tribunal is a jurisdictional fact upon which the Court must reach its own view”.

16    The applicant submitted that in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553 it was held that in circumstances where a person is not in a “fit state” to represent himself before the Tribunal, it was clear that a hearing invitation issued by the Tribunal was not “meaningful”, that any hearing that had taken place when the review applicant before the Tribunal was not “fit” was not a “fair hearing” as required by the Migration Act, and that a decision made when the applicant was not “fit” to act for her or himself before the Tribunal was a decision that was affected by jurisdictional error.

17    The applicant referred also to BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49; 260 FCR 124 to the effect that it is not sufficient to establish lack of fitness or legal capacity for an applicant before the Tribunal merely to demonstrate that she/he suffers from a particular condition.

18    The applicant submitted there was a plethora of evidence in this case that should have placed the Tribunal on notice that there were serious and substantial questions concerning the applicant’s fitness to proceed before the Tribunal as a self-represented applicant, including his history of drug and alcohol abuse, his diagnosis of Post Traumatic Stress Disorder, his claims to be suffering from a further mental health condition in the form of a bipolar disorder, his history of non-compliance with medications that had been prescribed for his heroin addiction and claimed bipolar disorder, and his (apparently ongoing) use of a powerful opiate drug, Oxycodone.

19    Despite all of this evidence raising doubts concerning his fitness to act in his own behalf, the applicant submitted there was no indication whatsoever in the Tribunal’s written decision that it made any inquiry to ascertain whether he was in fact fit to proceed, or that it made positive findings that he was indeed fit. The applicant referred in particular to [10]-[12], [24], [66] and [100] of the Tribunal’s reasons.

20    The applicant submitted that the critical issue was whether, when they were facts indicating that applicant had a number of conditions which may have affected his ability, his fitness and his capacity to proceed, the Tribunal had a positive duty to make inquiries and to make positive findings. The applicant submitted that that positive duty existed and in respect of the duty to inquire referred to Allregal Enterprises Pty Ltd v Carpaolo Nominees Pty Ltd [2009] WASCA 33 at [8] and to Goddard Elliott v Fritsch [2012] VSC 87 at [563].

21    The Minister submitted the Tribunal was aware of the applicant’s medical history, referring to the Tribunal’s reasons at [5], [10], [11], [12], [24], [56]-[59], [66]-[68], and in particular at [58].

22    The Minister submitted that, in respect of the applicant’s assertion as to his mental capacity to participate in the Tribunal hearing, as the High Court stated in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12, at [86]:

For a very long time, it has been recognised in our legal system that the mere mention, even the proof, of mental disability of some kind does not necessarily render a person incompetent to give instructions to legal or other representatives or to give evidence that will be received and considered in a formal legal proceeding.

23    In the present case, the Minister submitted, not only was there no evidence before the Tribunal indicating (let alone being capable of establishing) that the applicant was unfit due to his mental state to participate in the hearing, but also there was no evidence before the Court now that might suggest that the applicant was incapable of participating. To the extent that the capacity of a person to participate in a hearing may be a jurisdictional fact for determination by the Court, the absence of any medical evidence concerning the applicant’s capacity to have participated in the Tribunal hearing presented a significant challenge to the ground succeeding. It was not sufficient for the applicant now to point to evidence that was before the Tribunal demonstrating that he had a drug history, and PTSD. Many litigants before the Tribunal, and the courts, had such histories and disorders. The Tribunal’s findings, in particular at [58] of its reasons, were open to it.

24    To the extent the applicant relied in this case on case law addressing whether the Tribunal provided an applicant with a meaningful invitation to hearing by reference to ss 425 or 360 of the Migration Act, the Minister submitted that reliance on those cases was inapt. Here the Tribunal was conducting its review under s 500(1)(ba) of a decision made under s 501CA(4). In any event, in the circumstances of this case the applicant did not derive assistance from that case law. The Minister submitted that, for instance, although the applicant cited the Full Court’s judgment in BJB16, at [43] the Full Court there stated: “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.” The Minister also referred to SCAR.

25    The Minister submitted that the Tribunal did not deny the applicant procedural fairness in the conduct of the hearing. It was cognisant of his medical history, but this was not a case where any duty to inquire might arise: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429. There was no evidence either that the applicant requested an adjournment of the hearing because of his mental health issues, or that the applicant indicated at all that he was struggling to participate at the hearing. The applicant had failed to identify in what way he was unable to participate in the hearing, or to point to any part of the Tribunal’s reasons (for instance, poor performance under cross-examination) that might have been explained by any incapacity. No practical injustice was identified. The applicant was not, the Minister submitted, denied procedural fairness.

Consideration

26    In my opinion it is not necessary to address the issue by reference to jurisdictional facts. I would not characterise as a jurisdictional fact whether or not a person has the capacity to participate in the proceedings. What may be a jurisdictional error is not limited to error in relation to a jurisdictional fact: compare the single judge authorities which have followed SCAR as if it stood for a proposition about jurisdictional facts, NAMJ at [46] and SZMSA at [19]. SCAR does not appear to consider the issue of jurisdictional facts, and a more general approach is better aligned with later High Court authority: see SGLB at [45], where Gummow and Hayne JJ described as an “assumption … without foundation” 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”. I note also that SGLB was decided after NAMJ. If it were a jurisdictional fact then it would be open to the applicant to adduce evidence in this Court but, as I shall next explain, it was in any event open to him to do that in this case.

27    This is because characterising the question as one of procedural fairness also means that it was open to the applicant to adduce evidence before this Court as to his capacity to participate in the proceedings in the Tribunal.

28    It may well be that if the fact was, albeit unknown to the Tribunal, that the applicant did not have the capacity to participate in the proceedings before the Tribunal then there may have been a denial of procedural fairness. In other words, that there was no claim or no such evidence or material before the Tribunal does not necessarily mean that the claim for judicial review in this Court on that ground must fail.

29    Subject to one matter, it is not a question of fault stemming from action or inaction on the part of the Tribunal, but a question of whether the proceedings before it in fact miscarried.

30    Approaching the present application in this way, 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. It is relevant but not conclusive that the applicant did not claim unfitness or incapacity before the Tribunal.

31    I accept that authorities concerning s 425 of the Migration Act indicate that an inability of applicants to represent themselves before the Tribunal by reason of mental or physical unfitness may, even if not known by the Tribunal, give rise to a failure by the Tribunal to provide a “real and meaningful” invitation to them to appear before the Tribunal to give evidence and to present arguments relating to the decisions under review: see SCAR at [41]. For present purposes the same would apply to s 360. However neither of those provisions was applicable to the present Tribunal’s review under s 500(1)(ba) of a decision made under s 501CA(4). In his oral submissions in reply, the applicant accepted this.

32    In any event, as stated by the Full Court in BJB16 at [43]:

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.

33    Applying that reasoning, it is here that the applicant’s case is not made out. There is no evidence before the Court showing that the conditions from which the applicant suffered adversely affected his capacity to participate in the Tribunal proceedings.

34    As to the applicant’s reliance on Allregal Enterprises and Goddard Elliott, I should not be taken to accept that the reasoning in those cases on which the applicant relied, which concerned the position of courts, is directly applicable to the question of jurisdictional error on the part of the Tribunal. In any event, those cases turn on their own facts. I do not accept that in the present case there were facts before the Tribunal indicating that the applicant’s capacity to proceed was or may have been affected. I do not accept that there was substantial evidence before the Tribunal to that effect, or that the applicant’s incapacity or inability to participate in the proceedings before the Tribunal was obvious or self-evident.

35    In the present case, there are no findings by the Tribunal which may intersect with evidence before the Court as to the applicant’s capacity to participate in the Tribunal proceedings: compare SCAR at [24] where the facts were that although the answers the respondent in that case made to the Tribunal were responsive and cogent and, at least in some cases, complex, that evidence was assessed by the Tribunal member who found that in important respects it was vague and confused. The evidence before the primary judge in SCAR gave at least a possible explanation for why the respondent’s evidence was vague and confused: see in particular [12] and [41] of the Full Court’s reasons. In the present case there is no corresponding finding by the Tribunal and no medical evidence adduced before this Court.

36    Further, there is a parallel with the position described by the Full Court in BJB16 at [48]:

… The appellant failed to adduce evidence to enable the primary judge to conclude that the appellant was unable to meaningfully participate in the interview with the delegate. No transcript was provided. There was no direct evidence of what occurred. There was no expert evidence. Further, although it is unnecessary perhaps to go this far, available evidence indicating that the delegate formed the view that the appellant was able to understand and respond to the delegate’s questions in the interview was against the position argued for the appellant.

37    Similarly here, there is not in evidence before me either a transcript or an audio recording of the hearing before the Tribunal. Neither is there any evidence showing that PTSD in its particular manifestation in the case of the applicant, or PTSD combined with one or more of the other conditions suffered by the applicant or the applicant’s use of Oxycodone as a painkiller for back injuries, as referred to in the Tribunal’s reasons, meant that the applicant did not, or might not, have the capacity to participate in the Tribunal proceedings or that it would be evident, such as to put the Tribunal on inquiry, that the applicant did not, or might not, have that capacity. As I have already noted, the applicant did not raise before the Tribunal the question of his capacity to participate in the proceedings.

38    The occasion does not therefore arise for considering the circumstances in which a tribunal may be under a legal duty to make further inquiries as an aspect of completing its statutory task. On the evidence before this Court, I do not accept the applicant’s submission that the Tribunal must have made a jurisdictional error in failing to make inquiries into the applicant’s capacity to participate in the proceedings before it.

39    In SZIAI, after noting authority against the proposition that failure by a decision-maker to initiate inquiries could constitute a departure from common law standards of natural justice or procedural fairness, and having said it was difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said, at [26], in relation of the facts of that case, that there was nothing on the record to indicate that any further inquiry by the Tribunal could have yielded a useful result. Their Honours said there was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision.

40    In the present case, I do not accept the contention that the Tribunal failed to make an obvious inquiry or that any such inquiry could have yielded a useful result.

41    I do not accept the contention on behalf of the applicant that the Tribunal demonstrated a tendency to require formal evidence in the exercise of its statutory powers notwithstanding the general statutory injunction that it was not bound by the rules of “evidence”. The position is 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.

Conclusion and orders

42    The application for judicial review of the Tribunal’s decision is dismissed, with costs.

Associate:

Dated:    10 April 2019