Fairness and Capacity

 Karan v Minister for Home Affairs [2019] FCAFC 139 is yet another recent Full Court character cancellation case. Mr Karan (a citizen of Fiji) had a history of alcohol and drug addiction and mental illness. He represented himself before the AAT. The jurisdictional error which was alleged in the courts at first instance and on appeal was that he had been denied procedural fairness because the Tribunal had failed “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…”

Apart from not being able to identify any legal basis for imposing a duty to assess capacity, the case also failed because there was no evidence that: “any particular ailment which impacted on his competency or capacity to participate in the proceeding”.

The Full Court also helpfully set out some of the law on capacity including:

  • From BJB16 v Minister [2018] FCAFC 49: “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…”; and
  • From Minister v SGLB [2004] HCA 32: “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…”

Creative commons acknowledgment for the photograph.

Interpreted generously but…

Tran v Minister for Immigration and Border Protection [2019] FCAFC 126 is another sad character cancellation case. Mr. Tran moved to Australia at the age of 15 after he escaped from Vietnam with his brother and lived in a detention center in Hong Kong for a number of years. Mr Tran did have a “substantial criminal record” and was currently in prison for aggravated break and enter. There was evidence that he was rehabilitated from his drug addiction (which caused some of his prior offending) and he had the support of his wife and 3 Australian citizen children.

The case highlights the importance of identifying a jurisdictional error and not merely challenging the merits of the underlying decision (which is an impermissible in judicial review). Mr Tran was not legally represented either before the primary judge or in the appeal court. Even though the Court noted that subject to procedural fairness, poorly cast grounds of appeal (especially by self represented litigants) should be interpreted generously.

Nevertheless there was disagreement between the judges as to the ground of review being relied on. Greenwood J was prepared to find there had been a jurisdictional error because the delegate had not given “proper consideration” to the claim that being drug free since 2004 made future offending unlikely. However, Charlesworth and O’Callaghan JJ treated the same argument as being based on legal unreasonableness. Their Honours found that there was an “evident and intelligible” basis for not ruling out the risk of future offending (i.e. the decision was not unreasonable). Accordingly, Mr Tran’s visa remains cancelled and he will now have to return to Vietnam.