Chamesedine v Minister for Immigration, Citizenship and Multicultural Affairs - [2023] FedCFamC2G 62

Federal Circuit and Family Court of Australia
(DIVISION 2)
Chamesedine v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 62

File number(s): SYG 2099 of 2018

Judgment of: JUDGE GIVEN

Date of judgment: 10 February 2023

Catchwords: MIGRATION – whether error in finding that Carer Visa Assessment met applicable requirements – whether Carer Visa Assessment Certificate formulated on a misunderstanding of the applicable law – whether Tribunal’s decision was legally unreasonable

Legislation:
Social Security Act 1991 (Cth)

Migration (IMMI 17/126: Impairment Rating) Instrument 2017 (Cth)

Migration Regulations 1994 (Cth), reg 1.15AA

Cases cited:
Applicant Y v Minister for Immigration and Citizenship [2008] FCA 367.

CMYV17 v Minister for Immigration & Anor [2019] FCCA 617

Dang v Administrative Appeals Tribunal [2019] FCAFC 220

Karim v Minister for Home Affairs [2019] FCA 1064

Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

Minister for Immigration and Border Protection v SZFW (2018) 264 CLR 541

Division: Division 2 General Federal Law

Number of paragraphs: 41

Date of hearing: 20 September 2022

Place: Sydney

Counsel for the Applicant: Mr D Godwin (direct access)

Solicitor for the Respondents: Ms S Roberts of Mills Oakley
ORDERS

SYG 2099 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
TAHANIEDDINE CHAMESEDINE

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

JUDGE GIVEN

DATE OF ORDER:

10 Febraury 2023

THE COURT ORDERS THAT:
1.The application filed on 30 July 2018, as amended, is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17. 05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17. 05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:

By an application filed in this Court on 30 July 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 July 2018 affirming the decision of a delegate of the Minister (delegate) to not grant the applicant an Other Family (Residence) (Class BU) Carer (Subclass 836) visa (visa).
BACKGROUND
The following background and summary of the Tribunal’s decision is derived from the submissions of the first respondent, but is not in dispute.
On 20 July 2016, the applicant, a female citizen of Lebanon (CB 34), applied for a Carer visa (CB 1 to 50) the basis of her claim being that she is the carer for her Australian citizen grandson (CB 13). The sponsor for the visa is the applicant’s daughter, who is the mother of the grandson in question. Due to the personal nature of the medical matters discussed in the reasons for judgment, and that the applicant’s grandson is not the visa applicant himself, it is preferable to anonymise his name for privacy reasons. No disrespect is intended by it. The applicant’s grandson will be referred to throughout as “Z”.
It was a requirement for the grant of the visa that the applicant was Z’s “carer” at the time the Carer visa application was determined: see cl 836.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The term “carer” is defined in reg 1.15AA. So far as it is relevant, reg 1.15AA provides:
(1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:
...
(b) according to a certificate that meets the requirements of subregulation (2):
(i) a person (being the resident or a member of the family unit of the resident) has a medical condition; and
(ii) the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and
(iii) the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and
(c) the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and
(2) A certificate meets the requirements of this subregulation if:
(a) it is a certificate:
(i) in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and
(ii) signed by the medical adviser who carried it out; or
(b) it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.
(3) The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph 1(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.
The relevant legislative instrument is the Migration (IMMI 17/126: Impairment Rating) Instrument 2017 (Cth) (Instrument). Clause 5 of the Instrument provides that for the purposes of paragraph 1.15AA (1)(c) of the Regulations, the impairment rating is 30. The effect of cl 5 of the Instrument is that the delegate, and the Tribunal on review, were required to be satisfied at the time that the decision was made that there existed a certificate in relation to Z which rated his impairment 30: see Karim v Minister for Home Affairs [2019] FCA 1064.
The Department wrote to the applicant on the following dates:
(a)22 July 2016 (CB 58 to 62);
(b)22 November 2016 (CB 70 to 76); and
(c)16 March 2017 (CB 78 to 84)
requesting that she provide a Carer Visa Assessment Certificate (CVAC) pertaining to her care of Z.
In response to the Department’s third request, the applicant’s representative responded by email stating that the applicant (CB 85):
has informed me that they can not [sic] provide further documents and requested that the delegate to consider (sic) the documents which they have earlier provided for this application.
On 24 March 2017, the delegate refused to grant the applicant the visa on the basis that she did not satisfy reg 1.15AA(1)(b), became a CVAC the requirements of reg 1.15AA(2) (set out above at [5]), had not been provided (CB 91-95).
The Tribunal
On 7 April 2017, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 96 to 106).
On 8 March 2018, the Tribunal invited the applicant to attend a hearing (CB 120 to 124) and requested that she provide a CVAC by 20 March 2018 (CB 123).
On 4 April 2018 the applicant attended a hearing of the Tribunal to give evidence and present arguments, together with Z’s parents (CB 128 to 131). At the Tribunal hearing the applicant provided a CVAC dated 20 July 2016 (2016 CVAC). The 2016 CVAC assigned Z a total rating of 15 points (CB 135).
The sponsor (Z’s mother) also gave evidence at the hearing during which she told the Tribunal that, in her view, the impairment rating assigned to Z in the 2016 CVAC was incorrect. Z’s mother said that she had not been listened to by BUPA, that she had provided BUPA with additionally requested information, but that Z had not yet been reassessed. The Tribunal decided to allow the applicant additional time to enable Z to be reassessed for a further CVAC (CB 222 at [16] to [17]).
On 22 June 2018, the applicant provided the Tribunal with the following documents:
(a)a CVAC dated 28 May 2018 (2018 CVAC), which assigned Z with a total rating of 20 points (CB 195 to 196);
(b)a report from the medical adviser who completed the visa assessment in relation to Z, explaining the basis of her findings (CB 203-208); and
(c)a submission from the sponsor which stated that while she did not understand why Z had only been awarded 20 points, she understood the Tribunal may have no option but to “dismiss” the review application (CB 194).
On 10 July 2018, the Tribunal affirmed the delegate’s decision (CB 219 to 222).[1]
[1] The cover sheet of the Tribunal’s decision bears a typographical error stating that the date of the decision was “10 July 2017.”
The Tribunal identified the issue arising on the review was whether the relative with the medical condition had been assigned an impairment rating of at least 30 in a CVAC, as required by reg 1.15AA (CB 220 at [7]).
The Tribunal was satisfied that the 2018 CVAC met the relevant requirements and found that as Z had been assessed as having an impairment rating of 20 which, being below the requisite level of 30, meant that cl 836.221 was not met (CB 222 at [18] to [19]).
APPLICATION TO THIS COURT
By an application to show cause filed on 30 July 2018 the applicant sought judicial review of the Tribunal’s decision and raised three grounds of review.
On 20 August 2018, a Registrar of the Court made orders, by consent, which required that the applicant file any amended application by 29 October 2018. On 2 September 2022, the applicant, who by that time was represented by Counsel on a direct access basis, filed written submissions which appended a draft Amended Application abandoning the grounds in the originating application, and raising a single particularised ground.
The Minister, who met the ground of review by written submissions filed on 9 September 2022, did not oppose leave being granted. At the commencement of the hearing I granted leave to the applicant to rely upon the Amended Application and, because the applicant’s Counsel appeared on a direct access basis, the Court assisted by arranging for the document to be lodged with the Registry, once it had been signed by the applicant at the conclusion of the hearing. The Court Book was received at hearing and marked Exhibit “1A”. As noted, the applicant was represented by Counsel. The Minister was represented by a solicitor. The Court has been assisted by the all the submissions (written and oral) made for the parties by their representatives.
By reference to the Amended Application, the applicant’s sole ground of review is now as follows:
1.The Tribunal erred by finding that a Carer Visa Assessment Certificate (CVAC) met the applicable legal requirements when in fact the certificate was formulated on a misunderstanding of the applicable law or was legally unreasonable.
Particulars
On the facts accepted by the medical officer who authored the CVAC the applicable law (being reg1.15AA of the Migration Act and the Social Security (Tables for the Assessment of Work related Impairment for Disability Support Pension) Determination 2011) required a rating of severe functional impairment under table 13 whereas the medical officer assessed a moderate functional impairment under table 13. Further it was legally unreasonable for the medical officer to attribute the moderate functional impairment rating.
The Explanatory Statement (ES) for the Instrument sets out (at ES at [5]) that the Impairment Tables specified in subparagraph 1.15AA(1)(b)(iii) are contained in an instrument made under s 26(1) of the Social Security Act 1991 (Cth). The relevant instrument is “The Social Security (Tables for Assessment of Work-related impairment for Disability Support Pension) Determination 2011 (Cth)” (Determination).
Table 13 in the Determination relevantly provides (emphasis in original):

Points Descriptors

10
There is a moderate functional impact on maintaining continence of the bladder or bowel.

(1) At least (2), (3) or (4) applies.

Bladder
(2) The person:
(a) has minor leakage from the bladder (e.g. a small amount of urine when coughing or sneezing) several times each day; and
(b) in respect of continence of the bladder has difficulties that result in interruption to tasks, work or training on most days

Bowel
(3) The person:
(a) has major leakage from the bowel (e.g. enough faecal matter to fully soil underwear and stain outer clothes if a continence pad is not worn) in most weeks; and
(b) in respect of continence of the bowel has difficulties that result in interruption to tasks, work or training on most days.

Continence aids
(4) The person:
(a) has a stoma, or uses a catheter or other collection device to manage their continence independently but requires frequent bag or catheter changes, or has frequent equipment failure; and
(b) in respect of continence aids has difficulties that result in interruption to tasks, work or training on most days.

Points Descriptors

20
There is a severe functional impact on maintaining continence of the bladder or bowel.

(1) at least (2), (3) or (4) applies.

Bladder
(2) In respect of continence of the bladder:
(a) the person’s condition may affect the comfort or attention of co-workers; or
(b) the person has continual dribbling of urine throughout the day; or
(c) the person has major leakage from the bladder (e. g. a large amount of urine – enough to soak through a prescribed continence pad and clothes) at least every day but not every hour.

Bowel
(3) In respect of continence of the bowel:
(a) the person’s condition may affect the comfort or attention of co-workers; or
(b) the person has minor leakage from the bowel (e.g. enough faecal matter to soil underwear or continence pad but not outer clothes) every day; or
(c) the person has major leakage from the bowel (e.g. enough faecal matter to fully soil underwear or a continence pad) at least weekly.

Continence aids
(4) In respect of continence aids:
(a) the person’s condition may affect the comfort or attention of co-workers; or
(b) the person has a stoma, or uses a catheter or other collection device to manage their continence and needs some assistance from another person to manage the continence aid; or
(c) the person wears continence pads and needs some assistance to change these during the day.

Part 2 of the Determination prescribes the rules for how the impairment tables are to be applied.
Relevantly, cl 11(c) of the Regulations provides that if an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.
The relevant “facts” relied upon by the medical officer were as follows (CB 207):
Details of the Impairment: [Z] has a significant problem with urinary incontinence which [his mother] reports is due to his renal impairment. He generally leaks a small amount of urine throughout the day, approximately 10 times a day. This occurs both at home and at school…
By the ground of review the applicant asserts that the Tribunal’s decision is affected by jurisdictional error because it relied on an invalid CVAC. The applicant contends that the 2018 CVAC was invalid because the medical advisor, upon whose opinion the 2018 CVAC was based, accepted facts that required a rating of a “severe” functional impairment under Table 13 (which would attract 20 points), rather than the “moderate” rating which was applied under Table 13 (attracting only 10 points).
This was said to turn upon the question of whether the description that Z (see [26] above):
…generally leaks a small about of urine throughout the day, approximately 10 times a day…
ought to have been found to meet the descriptor of “continual dribbling of urine throughout the day” pursuant to cl 2(c) for severe functional impairment.
If, as contended for by the applicant the medical advisor ought to have assessed Z as meeting that level of impairment then it would affect the jurisdiction of the Tribunal in applying that opinion: see Dang v Administrative Appeals Tribunal (2019) 273 FCR 87 at [66] per Kerr, Colvin and Jackson JJ). The first respondent accepts that if the 2018 CVAC was based on a misapplication of the Impairment Tables mentioned in subparagraph 1.15AA(1)(b)(iii), and the Tribunal treated its opinion as one which it was required to accept as correct, jurisdictional error would result (see Dang (supra) at [49]).
However, the Minister submits that the report prepared by the medical advisor who completed the 2018 CVAC for Z demonstrates a correct application of the criteria in the “Impairment Tables” referred to in subparagraph 1.15AA(1)(b)(iii). The Minister, noting that the medical advisor’s acceptance that Z generally leaks a small amount of urine throughout the day, approximately 10 times a day was not factually in dispute, submitted that when the descriptor in paragraph 2(a) for a “moderate” functional impact and cl 11(c) are taken into account, the medical advisor’s opinion reflects a correct application of the Determination.
Consideration
To the extent that it is alleged that the medical advisor’s opinion was legally unreasonable, the test for unreasonableness is “necessarily stringent”: see Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11] per Kiefel CJ. The assessment of whether the opinion was legally unreasonable does not involve the Court re-making the decision according to its own view of reasonableness: see Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [59] per Allsop, Griffiths and Wigney JJ. Rather, the question for the Court is whether a decision-maker could reasonably have come to the conclusion reached: see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [21] per Allsop CJ.
In the present case, the Tribunal needed to be satisfied at the time of its decision that there was a CVAC which rated Z’s impairment at 30. The 2018 CVAC rated Z’s impairment at 20. If it is accepted that the 2018 CVAC was made in compliance with the relevant statutory requirements, this inevitably meant that the Tribunal was required to affirm the decision to refuse to grant the visa because the applicant could not meet an essential criterion for the grant of it, namely that she was a “carer” as defined in reg 1.15AA: cl 836.211: see Karim (supra) at [21].
Clause 2(a) for moderate functional impairment in Table 13 is constituted by:
…minor leakage from the bladder (e.g. a small amount of urine when coughing or sneezing) several times each day.
It can be accepted that the indefinite numeric description of “several” used in cl 2(a) would ordinarily mean more than one or two. Whether “several” then extends to as many as 10 occurrences is not for the Court to assess for itself. It is open to infer, and I do, that the (approximately) 10 reported instances of urine leakage throughout a day was not considered by the medical advisor as sufficiently severe or frequent as to constitute “continuous” leakage. Perhaps because the instances were sufficiently separate as to be able to be counted, albeit that is not expressly explained.
Given the inference that the medical advisor did not consider the instances to be sufficiently severe, so as to constitute “continuous leakage”, and thereby to satisfy all of the descriptors for the several functional impairment level the medical advisor was required to assign the lower of the two ratings, pursuant to cl 11(c). Counsel for the applicant suggested at one point in the hearing that there is scope within cl 11(c) to have meant that the applicant could meet the higher of the two ratings. However that was not an argument specifically pleaded or developed, and it does not seem an available conclusion on the material before the Court.

In my view there is no basis upon which to conclude that the 2018 CVAC was made other than in compliance with the statutory requirements and by reference to the relevant impairment tables.
It should be observed that it seems somewhat inapposite that the functional impairment of a child (or any person) for a Carer visa should utilise tables in a Determination designed to assess function impairment for work. However, that is a matter upon which the Minister should reflect and cannot inform the Court’s decision. The medical advisor was required to consider Z’s impairment by reference to that measure, and I find she did so.
The Tribunal was required to treat the CVAC as being correct and, by reason of my findings above, in doing so there is no jurisdictional error by reason of its reliance thereon, and the resulting conclusion that that the applicant could not meet the criteria for the visa by reason of the resulting impairment assessment.
It remains to say that the Court has utmost sympathy for the circumstances of the case.
However, the decision of the Tribunal being free from jurisdictional error, it is a privative clause decision and must be dismissed and I will so order. However, in all the circumstances of this case, it would be desirable that consideration be given by the first respondent to any available avenue of Ministerial intervention.
I will hear the parties as to costs.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.
Associate:
Dated: 10 February 2023

File number(s):	SYG 2099 of 2018
Judgment of:	JUDGE GIVEN
Date of judgment:	10 February 2023
Catchwords:	MIGRATION – whether error in finding that Carer Visa Assessment met applicable requirements – whether Carer Visa Assessment Certificate formulated on a misunderstanding of the applicable law – whether Tribunal’s decision was legally unreasonable
Legislation:	Social Security Act 1991 (Cth) Migration (IMMI 17/126: Impairment Rating) Instrument 2017 (Cth) Migration Regulations 1994 (Cth), reg 1.15AA
Cases cited:	Applicant Y v Minister for Immigration and Citizenship [2008] FCA 367. CMYV17 v Minister for Immigration & Anor [2019] FCCA 617 Dang v Administrative Appeals Tribunal [2019] FCAFC 220 Karim v Minister for Home Affairs [2019] FCA 1064 Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Border Protection v SZFW (2018) 264 CLR 541
Division:	Division 2 General Federal Law
Number of paragraphs:	41
Date of hearing:	20 September 2022
Place:	Sydney
Counsel for the Applicant:	Mr D Godwin (direct access)
Solicitor for the Respondents:	Ms S Roberts of Mills Oakley

SYG 2099 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	TAHANIEDDINE CHAMESEDINE Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	JUDGE GIVEN
DATE OF ORDER:	10 Febraury 2023

Points	Descriptors
10	There is a moderate functional impact on maintaining continence of the bladder or bowel. (1) At least (2), (3) or (4) applies. Bladder (2) The person: (a) has minor leakage from the bladder (e.g. a small amount of urine when coughing or sneezing) several times each day; and (b) in respect of continence of the bladder has difficulties that result in interruption to tasks, work or training on most days Bowel (3) The person: (a) has major leakage from the bowel (e.g. enough faecal matter to fully soil underwear and stain outer clothes if a continence pad is not worn) in most weeks; and (b) in respect of continence of the bowel has difficulties that result in interruption to tasks, work or training on most days. Continence aids (4) The person: (a) has a stoma, or uses a catheter or other collection device to manage their continence independently but requires frequent bag or catheter changes, or has frequent equipment failure; and (b) in respect of continence aids has difficulties that result in interruption to tasks, work or training on most days.
Points	Descriptors
20	There is a severe functional impact on maintaining continence of the bladder or bowel. (1) at least (2), (3) or (4) applies. Bladder (2) In respect of continence of the bladder: (a) the person’s condition may affect the comfort or attention of co-workers; or (b) the person has continual dribbling of urine throughout the day; or (c) the person has major leakage from the bladder (e. g. a large amount of urine – enough to soak through a prescribed continence pad and clothes) at least every day but not every hour. Bowel (3) In respect of continence of the bowel: (a) the person’s condition may affect the comfort or attention of co-workers; or (b) the person has minor leakage from the bowel (e.g. enough faecal matter to soil underwear or continence pad but not outer clothes) every day; or (c) the person has major leakage from the bowel (e.g. enough faecal matter to fully soil underwear or a continence pad) at least weekly. Continence aids (4) In respect of continence aids: (a) the person’s condition may affect the comfort or attention of co-workers; or (b) the person has a stoma, or uses a catheter or other collection device to manage their continence and needs some assistance from another person to manage the continence aid; or (c) the person wears continence pads and needs some assistance to change these during the day.