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.

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