Dang v Administrative Appeals Tribunal - [2019] FCCA 586

FEDERAL CIRCUIT COURT OF AUSTRALIA

DANG v ADMINISTRATIVE APPEALS TRIBUNAL & ANOR

[2019] FCCA 586

Catchwords:
MIGRATION – Review of administrative appeals decision – application out of time – whether leave ought be given – arguable case – leave granted – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Blair v Minister for Immigration & Multicultural Affair [2001] FCA 1014
Robinson v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 148 FCR 182; [2005] FCA 1626
Minister for Immigration and Border Protection v SZMTA & Anor; CQZ15 and BEG15 v Minister for Immigration and Border Protection & Anor [2019] 3

Applicant:

THI KIM LY DANG

First Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

File Number:

PEG 640 of 2016

Judgment of:

Judge Vasta

Hearing date:

30 November 2018 and 26 February 2019

Date of Last Submission:

26 February 2019

Delivered at:

Perth

Delivered on:

27 February 2019

REPRESENTATION

Solicitors for the Applicant:

Jones Day

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

That pursuant to s.477 of the Migration Act 1958 (Cth), an extension of time to file an Application is allowed.
That all other Applications are otherwise dismissed.
That the Applicant pay the costs of the Second Respondent fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

No. PEG 640 of 2016

THI KIM LY DANG

Applicant

And

ADMINISTRATIVE APPEALS TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

On 26 October 2015, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision of the delegate not to grant an employer nomination permanent visa for the Applicant, her husband and her son. That decision meant that the Applicant had 35 days to file an application in this Court for judicial review. In other words, the Applicant had to file her application by 1 December 2015. She actually filed her application on 22 December 2016 which was over 12 months later. This application therefore is an application for an extension of time.
The factual matrix of the matter is that the Applicant is a citizen of Vietnam born on 25 May 1974. In 2002, she married her husband who was also a Vietnamese citizen, and their son, Dang Gai Huy Nong (Huy), was born in 2003. Huy was first identified as having Down syndrome when he was two years old.
In 2009, the Applicant entered Australia on a subclass 537 student visa. After she came to Australia, she studied for a Certificate III and then a Certificate IV in Hairdressing as well as a diploma in hair salon management. After finishing her studies, she obtained employment at a hairdressers in Bentleigh in Victoria who agreed to sponsor her for a subclass 457 visa.
She was granted a 457 visa on 24 August 2011. Her son and her husband were subsequently granted 457 visas on 1 November 2011 and joined her in Australia on 8 January 2012. On 3 September 2013, the migration agent of the Applicant lodged an application with the Department for a permanent employer nomination subclass 186 visa for the Applicant, for the husband and for the son. There were various documents provided in support of that application. It was assessed as a valid application and the Applicant, her husband and her son were granted bridging A visas.
On 30 January 2014, an officer of the Department advised the Applicant’s migration agent that the matter was being transferred to a senior case officer for health-waiver assessment as Huy did not meet the health requirement. By letter dated 17 March 2014, the Department advised the Applicant that a medical officer of the Commonwealth had advised that Huy did not meet the health requirement and that, to enable it to assess whether a health waiver was warranted, the Department required detailed information on her ability to mitigate the estimated potential costs involved and also asked her to provide any compelling and compassionate circumstances surrounding her family’s case that might support a waiver being exercised in her favour.
On 15 April 2014, the agent provided documents to the Department and on 5 November 2014 a delegate of the Minister made a decision that the health requirement not be waived and consequently the delegate did not approve the grant of the visa to the Applicant, the husband or the son.
The Applicant was advised of that decision by a letter on 5 November 2014. That letter also enclosed the decision record and a brochure that was issued by the Migration Review Tribunal. On 7 November 2014, so some two days later, the migration agent lodged an application with the then Migration Review Tribunal seeking review of the decision refusing to grant those visas.
On 25 June 2015, the migration agent provided to the then MRT, a request for a further opinion from a Commonwealth Medical Officer. On 1 July 2015, the MRT was subsumed into the Administrative Appeals Tribunal so it was now the AAT that was looking after the matter. On 8 July 2015, the migration agent provided the AAT with further information to be considered by the Commonwealth Medical Officer in undertaking the further medical assessment.
The AAT requested a further medical opinion on 8 July 2015 and that opinion was received on 20 July 2015. That opinion said that child did not meet the health requirement and there was an opinion given as to the estimated cost to the Australian community of the services that would have to be provided to the son.
The Tribunal then provided the Applicant with copies of the medical opinions and invited her to give comments or respond to the information in writing by 12 August 2015. The letter that was sent to the Applicant by the AAT noted this that they had not made up their mind about the information, that the opinion from the medical officer of the Commonwealth said that the child did not meet public interest criterion 4007(1)(c)(ii)(A).
The letter also attached a health-waiver information sheet prepared by that medical officer for the purposes of considering a waiver of paragraph 4007(1)(c) and that assessed the likely cost to the Australian community for care of the child at $3,253,216.00 as itemised. The itemisation was in fairly bland form talking of the areas in which there would be expenditure needed.
The Applicant and the migration agent attended a hearing conducted by the Tribunal on 19 August 2015 and, following the hearing, the migration agent provided the Tribunal with a submission and supporting documents. The AAT in looking at the matter considered everything that had been given to it by the migration agent and all the submissions and then looked at all of the material.
The first aspect the AAT looked at was whether the child was free from relevant diseases or conditions and noted that cl.4007(1)(a) and (b) require the child to be free from tuberculosis and free from any disease or condition that is or may result in the child being a threat to public health in Australia or a danger to the Australian community.
Clause 4007(1)(c) requires the child to be free from any disease or condition which would be likely to require healthcare or community services or which would meet the medical criteria for provision of a community service during the specified period and the provision of the healthcare would be likely to result in a significant cost to the Australian community in the areas of healthcare and community services.
The Tribunal noted that there was an ability for this requirement to be waived.
The AAT looked at the medical opinion that had been provided. The Tribunal noted that an opinion from the medical officer of the Commonwealth was required and that the Tribunal must take that opinion as correct but before doing so must first be satisfied that the medical officer of the Commonwealth has applied the correct test in forming the opinion – that is, the opinion must identify the medical condition to which the public interest criterion has been applied and the form or level of the condition suffered by the Applicant and that the medical officer of the Commonwealth must have applied the statutory criteria by reference to a hypothetical person who suffers from the form or level of the condition.
The AAT found that the officer had applied the correct test in forming the opinion and that the opinion was that the child suffered Down syndrome and that the level was a moderate intellectual impairment and that the condition was likely to be permanent.
Having come to that conclusion, the Tribunal then had to look at whether the cl. 4007(1)(c) could be waived. That was the bulk of what the AAT ended up looking at.
Because there had been an assessment that it would cost the Australian community $3.2 million, the AAT was especially thorough to see in what ways the Applicant could mitigate that cost and what were the compelling compassionate grounds, if any, to also militate towards such a waiver.
Having gone through all of the personal circumstances and what the applicants had done, the Tribunal ended up saying this at paragraph 35:
35. The Tribunal asked Mrs Dang and Mr Nong about mitigating costs associated with the long term needs of Huy. Mrs Dang stated they do not understand the costing made by the MOC. Mrs Dang and Mr Nong will provide accommodation and care of Huy on a daily basis. They also plan to leave sufficient funds to meet his living costs, including providing a home when they are no longer alive. The funds would be managed by the State Trustee who would take 5% as a fee. They currently have the following assets, in addition to their family home: the three properties in Vietnam (combined worth $230,000), plus savings in Australia of about $7,000 plus savings in Vietnam of $129,000, other assets worth $20,000, superannuation and life insurance.
36. Mrs Dang and Mr Nong have private medical cover for “Working Visa Hospital Insurance” for the family.
37. The Tribunal notes that Mrs Dang and Mr Nong plan to leave funds to meet Huy’s day to day care needs and they currently do meet his day to needs. However, it is evident that the Australia community is already bearing the costs associated with Huy’s condition, with the provision of additional supports in schooling at the Springvale Park Special School and the Noble Park Primary School and this will continue in to the future for some years as Huy attends secondary schooling. Further, when Huy is older Huy will also access other community services such as supported employment arrangements. The Tribunal anticipates that Huy will continue to need the assistance of the Australian community to have those arrangements in place to support him.
The Tribunal looked at a number of other matters and came to the conclusion that, on balance, they were not satisfied that there were any particular compelling or compassionate circumstances. The Tribunal was not satisfied that the granting of the visa would be unlikely to result in undue costs to the Australian community and, therefore, would not waive the condition.
This matter now has had somewhat of a long history in the Court, having been filed in December 2016. It went before Registrar Stanley on 1 March 2017 as a first Court date. Because of the manner of the list then, the Registrar could not give it a hearing date until some two years and three months afterwards, that being 27 May 2019. That listing was moved forward and backwards a few times until it was that I was able to start to hear the matter on 30 November 2018.
Unfortunately, on that date, the hearing was not able to be completed and there was an attempt to resume the hearing on 19 December 2018 by video link. That attempt was unsuccessful because of problems with the machinery and so I concluded the hearing yesterday, 26 February 2019.
When looking at an extension of time, to my mind, there are three issues that the Court needs to look at:
a)Firstly, what is the excuse for the delay;
b)Secondly, what prejudice is there to the respondent; and,
c)Third, is there a case on the merits that militates towards the Court needing to hear the matter?
All three aspects are important, though, in many extension of time cases, the question of the arguable case seems to take a great deal of attention.
With regard to the excuse, the Applicant says that after the AAT made the decision, her agent told her that the only option now was for her to seek ministerial intervention. The Applicant made the submission for ministerial intervention on 18 November 2015, which is just on three weeks after the AAT had made the decision. Ministerial intervention was considered; however, on 11 November 2016, the Minister had decided that he would not intervene in this matter.
She said that it was then that she was informed about the ability to seek judicial review. As the Applicant has said in submissions, when one looks at her evidence, it demonstrates that, following the decision, she was incorrectly informed that:
a)The next step was to lodge an application to the Minister for intervention;
b)If the Applicant did not lodge an application to the Minister, she and her family would have to leave Australia within 28 days;
c)The Applicant had no other choice than to apply to the Minister; and
d)Only the Minister have the power to overturn the decision.
Whilst that has been characterised as being incorrect information, I am not too sure that that characterisation is correct. One has to understand that the recourse to the Federal Circuit Court, the Federal Court and then the High Court are not to be seen as steps in the journey. The fact is that decisions made by the Tribunal are privative clause decisions and are not subject to appeal.
What is done by coming to the Courts is for the Court to review the decision to ensure that there has been compliance with all of the statutory duties of the Tribunal, that the hearing had been conducted properly according to law and had not been affected by jurisdictional error.
That is quite different from an appeal and the inference drawn by the Applicant from the information that she had been given, is actually correct. There is no power for this Court or the Federal Court or even the High Court to overturn the decision.
All the Courts can do is point out whether there has been a jurisdictional error and, if there has been such an error, have the proper decision-maker conduct a hearing again to ensure that that process is free from the jurisdictional error. Many times where Courts have ended up finding that there has been jurisdictional error and the matter is sent back to the AAT or even the delegate for reconsideration, the same result ends up being given.
So for the Applicant to say that she did not know coming to this Court was an option really is an attempt to characterise proceedings in this Court as somehow part of the long line of how migration decisions are dealt with in this country. Such a characterisation is false and should not be perpetuated. Unless there is an apparent jurisdictional error in the way in which the AAT or IAA have looked at migration matters, the AAT is the “end of the line”. There should not be a recourse to the Federal Circuit Court as if it were simply another cog in the migration machine.
Having said that, I must say that I do not take that the Applicant was, in any way, misunderstanding what it is that this Court would do. It is apparent from what I have seen that she has always contended that part of the problem in her case is that the Tribunal has approached her matter and committed a jurisdictional error. So my remarks on those should not be seen as being in any way some criticism of the attitude of the Applicant.
Nevertheless, it is a matter that I have to look at as to why it was that the Applicant did not file within 35 days. Of course, she says that she was not aware and therefore did not make a choice not to come to this Court; however, there was certainly material that was given to her and to the migration agent that explained what the process may be if it is that there was a claim of jurisdictional error.
As has been said by the Applicant here, there is no evidence that the Applicant knew about the rights before this Court to review the matter, and while she may have received documentation that does not elevate her status as being someone who knew.
It has been said that the explanation need not be a perfect explanation. It simply needs to be a satisfactory explanation. She says that once she was given that information she acted promptly. Further, if one considers how quickly she had acted to file an application for ministerial intervention and then, once given the information, how quickly she acted to file in this Court, that if one had to, in effect, excise the application for ministerial intervention and the time it took there, that that time would show what the wishes and the intention of the Applicant actually was.
Of course, I have to weigh that up. There has been quite a deal of resistance from the Minister to any course that would see the Court granting the leave, simply because of the extreme affluxion of time; that in allowing someone to file out of time, simply because she says that she didn’t know that she could come here, really makes a mockery of having time limits in the first place. There is some merit to that submission.
With respect to the second aspect, as to prejudice to the Respondent, there really is little prejudice to the Respondent other than the fact that the Respondent was able to think for a period of over a year that this matter was concluded, or would be concluded after a decision had been made as to the exercise of ministerial override. Now, I do not consider that such prejudice is anything that would militate against a grant of leave.
But as I said before, the most important part seems to be the merits whether this is a case where the Court ought to hear the matter. The Minister submitted that there is almost an inverse proportional relationship between delay and merit, submitting that the longer the delay, the greater the merit needs to be. It seems to me that, again, there is great merit in that submission.
If one then looks at the merits, there really are three grounds. They are grounds 2.2(a), 2.2(b) and 7. All other grounds have been abandoned and properly so.
Ground 2.2(a) reads as follows:
2.2 The Tribunal incorrectly considered that the assessment of the Medical Officer of the Commonwealth (MOC), dated 20 July 2015 (Second MOC Assessment) was binding upon it, despite the fact that the Second MOC Assessment involved errors of law for the following reasons:
(a) On the proper construction of Public Interest Criterion 4007(1)(c)(ii), the MOC is required to assess and determine the specific nature and extent of the Applicant’s son’s actual condition, with a generalised notion of the condition being insufficient. The Second MOC Assessment stated that the Applicant ‘has moderate intellectual impairment due to Down’s Syndrome’. Without identifying the exact nature of the intellectual impairment (i.e in what respect, it was said that the Applicant was ‘intellectually impaired’), the ‘specific nature and extent’ of the alleged ‘condition’ was not given. Rather, it was no more than a ‘generalised notion of the condition’: Robinson v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1626:92205) 148 FCR 18. The qualification of the alleged ‘intellectual impairment’ has been ‘moderate’ and ‘due to Down Syndrome’ is insufficient to qualify or particularise the asserted ‘intellectual impairment’ to the level of specificity required by PIC 4007.”

One then needs to go to the report itself, which has been reproduced at page 496 of the Court book. The opinion is this:
The applicant is a 11-year-old person with:
-Moderate intellectual impairment.
Form and severity of the applicant’s condition: the applicant has moderate intellectual impairment due to Down syndrome.
It then talks of the provisions of services to a hypothetical person in Australia. What is said is that this report does not detail the actual condition with some specificity. There has been a contrast with the report that was given in the matter of Blair v Minister for Immigration & Multicultural Affairs [2001] FCA 1014. In that case, the opinion was given by a doctor to say this:
…it is clear that Michael Courey has a mild intellectual disability with an IQ in the 47 – 58 range. In the two key areas of social functioning, adaptive behaviour and capacity for independent living, his behaviour is socially appropriate and adaptive for his age but he needs regular supervision and assistance with daily activities, routine tasks, personal care and financial transactions. He also has impaired communication skills and needs regular speech therapy. In summary, he would be eligible (sic) for the disability support pension on medical grounds.
In my opinion, the applicant would require ongoing assisted schooling and speech therapy. He would also be eligible for long term income support in the future at significant cost to the Australian community.
That is said to be an example of the form and specificity that is needed in a Medical Officer of the Commonwealth report. That is what is submitted is required by virtue of what it is that is said in Robinson v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 148 FCR 182; [2005] FCA 1626.
The Respondent argues that what is required is simply ascertaining the formal level of the condition suffered by the Applicant and then to apply the statutory criteria. The form, or level of the condition, has been identified. Notwithstanding that it does not meet the same sort of standards that the Applicant wishes with regard to comparison in the Blair (Supra) matter, nonetheless, by talking of this being a mild intellectual impairment due to Down syndrome is sufficient to allow the Medical Officer of the Commonwealth to then go on and look at what the consequences of such a condition are on a hypothetical person.
The Tribunal itself had said this at paragraph 13:
13. The Tribunal is satisfied that the MOC applied the correct test in forming an opinion. That is, the opinion identified the medical condition to which the public interest criterion has been applied, and the form or level of the condition suffered by the applicant, and the MOC has applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition. Accordingly, based on the opinion of the MOC, the applicant does not satisfy PIC 4007(1) (c).
While this may be a very fine point, it is a question at this stage as to whether this argument is one that does cause the Court to look at the matter being argued further.
The next ground is 2.2(b). It reads:
(b)In making the second MOC Assessment as to the level of severity of the Applicant’s son’s condition as at July 2015, the MOC relied upon medical reports dated between 2011 and 2012 which the MOC was bound to exclude by reason of the substantial period of time which had elapsed since those reports.
Again, going back to the actual report, the Medical Officer of the Commonwealth noted that he had regard to the information available to date concerning the Applicant, including, but not limited to the reports provided by the AAT, which include:
a)a doctor’s certificate dated 14 February 2012;
b)a speech pathology report dated 27 March 2012;
c)a psychiatric report dated 14 October 2011;
d)a psychological report dated 17 April 2012;
e)an occupational therapy report dated 10 February 2012;
f)a report by Ms Rosemary Nichols dated 10 April 2014;
g)a social worker report dated 3 April 2014;
h)a report provided by Dr Trang Hoang, dated 7 April 2014;
i)a form 884, dated 29 January 2014;
j)a letter from Ms Hilda Van Loon, dated 30 March 2014;
k)a letter from Springvale Vietnamese My Time and Friendship Group, dated 3 April 2015;
l)a letter from Dr Dzung Lee, dated 6 February 2015;
m)a letter from Miam Dang Wan Nguyen, dated 4 December 2014;
n)a letter from Vo Thi Kwai, dated 24 November 2014;
o)a letter from Mr Nga Nguyen; and
p)a letter from Mr Tyler Nguyen, dated 28 December 2014.
It is common ground that the child was not examined by the Medical Officer of the Commonwealth and so, in effect, this was a report on the papers. It is clear that the medical reports, which really are from the doctors and the psychiatrists, are somewhat old. There is certainly an update from the general practitioner, dated 6 February 2015, but it is clear, when one looks at that, that that is not in any way a comprehensive or forensic report. It is just simply talking about general matters.
The question then is, whether those reports being so old, was it proper for the Medical Officer of the Commonwealth not to ask for another report or to make an examination himself or herself of the child given the age of those reports, that being that the child was now 11 and, at the time of the reports, was eight or nine. Again, it’s a question of whether that is arguable.
Ground 7 is that,
7.1 The First Respondent denied the Applicant procedural fairness, and thereby made a jurisdictional error, by not:
(a)disclosing to the Applicant that the delegate of the Second Respondent had issued a certificate under section 375A of the Migration Act (certificate);
(b)further or alternatively, disclosing the certificate to the Applicant;
(c)giving the Applicant the opportunity to make submissions on the validity of the certificate; and
(d)disclosing to what extent, if any, the First Respondent was going to take into account the information covered by the certificate.
Particulars
7.2 A delegate of the Second Respondent issued a certificate on 22 November 2014.
7.3 Neither the First Respondent nor the Second Respondent disclosed to the Applicant that a delegate of the Second Respondent had issued the certificate.
7.4 Procedural fairness required the First Respondent to:
(a) disclose the certificate to the Applicant, or at least disclose to the Applicant that the certificate had been issued;
(b) give the Applicant the opportunity to make submissions on the validity of the certificate; and
(c) disclose to the Applicant to what extent (if any) the First Respondent was going to take into account the information covered by the certificate.
7.5 By failing to do any one or more of those things referred to in paragraph 7.4, the First Respondent denied the Applicant procedural fairness.
It is accepted that there was a notice given to the AAT of a certificate under s.375A.
It is accepted that the AAT did not use or consider any documents under that certificate. It is accepted that the AAT did not disclose the existence of that certificate. The point made is this; that in the information that was covered by that certificate was an earlier report by a Medical Officer of the Commonwealth. That report had come to the exact same conclusion that the child suffered from a mild intellectual impairment as a result of Down syndrome, but it assessed the cost to the Commonwealth as being a figure under $3 million.
When one looked at the other matters attached to that report – because it does seem that the Applicants had seen that report before – there had been a breakdown of those costs, the costs being $2,737,860.
The breakdown was in this way. Special education services, $22,250 by eight years, totalling $178,000. No comments on that breakdown.
The next one was Commonwealth disability services, $18,078 by 28 years, giving a total of $506,184. The comments were that was a “carer payment for the child between the ages of 12 and 40”.
The next breakdown was Commonwealth disability services, $9,854 by one year, giving that same total. The comments were the DSP at age 20.
The next breakdown was Commonwealth disability services, $18,078 by 38 years, giving $686,964. The comments are DSP to age 21 to 58 inclusive.
The next breakdown was State disability services, $30,000 by 30 years, giving a total of $900,000. The comments were State disability services, age 10 to 40.
The next breakdown then is residential care services, $25,381 by 18 years, giving a total of $456,858. The comments being RLC age 41 to 58. One can see just on that that the breakdown had been calculated upon the child having a life expectancy of 58 years and the moneys that would be paid under various Commonwealth or State services in specific periods of the child’s life.
So whilst the Applicants knew that there was a cost of special education services of $178,000, there was no information as to how that was made up.
The same with the Commonwealth disability services and the State disability services. What this information does is show, in some ways, the reasoning as to the total costs.
What is complained of is that if one goes back to paragraph 35 of the AAT’s reasons, the first sentence details the Tribunal asked Mrs Dang and Mr Nong about mitigating costs associated with the long-term needs of the son. Mrs Dang stated they do not understand the costings made by the MOC.
What is argued is here was, in the possession of the Tribunal, information which would, at the very least, help them understand the costings made by the MOC and, therefore, allow them to make the submissions.
Again, one has to look at the arguability of those matters. Having looked at the arguability of grounds 2.2(a), 2.2(b) and 7 all together, and then comparing that against the delay and the excuse, I am of the view that this is one of those very rare and exceptional circumstances where I should be giving leave for the Applicant to file her application out of time.
Having done that, then I have to then look at the grounds themselves. I have already gone through the arguments in each of those grounds in without coming to conclusions. I now come to the conclusions.
With regard to 2.2(a), I am of the view that, notwithstanding that the form and specificity is not in the same detail that is seen as one would think the gold standard in the matter of Blair (Supra), nevertheless, the description does, in fact, comply with the statute and it does not offend the principle in Robinson (Supra).
It has certainly allowed the Medical Officer of the Commonwealth to look at the extent of the medical condition and then apply the hypothetical person test. For that reason, I am of the view that there has been no jurisdictional error committed in relation to that ground.
As for 2.2(b), whilst it is that the report was based on old reports as one looks at all of those old reports, one can see that the condition of the child has not changed. The condition of mild mental retardation caused by Down syndrome is a condition that is not changing and not evolving.
Whilst there has been no further medical test, the other information that has been given is consistent with that original diagnosis and explanation as to what the deficits of the child are. There was, in this situation, no need for the Medical Officer of the Commonwealth to look at those matters as to whether there needed to be an update because it would seem that there would be very little utility in needing an update on a medical basis.
There has been no jurisdictional error illustrated in regard to this ground.
As to ground 7, this has been the ground that has concerned me the most. To my mind, one can see the unfairness of the Applicants being put in a position where they are given breakdowns of figures, but no explanation as to what that breakdown means and how it has been calculated. The AAT had that information notwithstanding that it did not utilise itself. The frustration by the Applicants as evidenced in what the AAT has said at paragraph 35 illustrates the unfairness that had been perpetrated by the issuing of the certificate.
But I have been very helpfully referred to a decision of the High Court delivered on 13 February 2019. It is the matters of the Minister for Immigration and Border Protection v SZMTA & Anor; CQZ15 and BEG15 v Minister for Immigration and Border Protection & Anor [2019] HCA 3.
All three appeals were heard at the same time by Bell, Gageler, Keane, Nettle and Gordon JJ. The majority of Bell, Gageler and Keane JJ went through the law in regard to certificates and what can be gleaned and what the consequences are of invalid certificates. At paragraph 44, the Court said:
… The Secretary’s provision of an incorrect, and therefore invalid, notification that s 438 applies in relation to a document or information amounts, without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review. Applying the principle of construction recently explained in Hossain v Minister for Immigration & Border Protection, however, the Act is not to be interpreted to deny legal force to a decision made on a review in the conduct of which there has been a breach of that limitation unless that breach is material.
[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.
…
[48] In the case of an invalid notification, where the court on judicial review of a decision of the Tribunal can infer that the Tribunal left the notified document or notified information out of account in reaching its decision, the question that still remains is whether there is a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account. The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal’s failure to take it into account could not realistically have affected the result.
[49] Where non-disclosure of a notification has resulted in a denial of procedural fairness, the similar question that remains for the court on judicial review of a decision of the Tribunal is whether there is a realistic possibility that the Tribunal’s decision could have been different if the notification had been disclosed so as to allow the applicant a full opportunity to make submissions. Whilst ”[i]t is no easy task for a court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome”, the task is not impossible and can be done in these appeals.
It seems to me then that the High Court is telling Courts at my level that what we have to consider is whether the disclosure of this information would have made a difference to what the final decision was. This issue has vexed me, but I have had a number of readings over of the reasoning of the Tribunal and the analysis that the Tribunal has made of the financial situation of the Applicant and her husband.
It seems to me that even if the Applicants did have this information and could have framed the submissions to look at the breakdown, it would not have had any effect on the outcome. This is because the financial situation of the Applicant and her husband simply did not allow for the Tribunal to be satisfied that the Applicant and her husband could mitigate the amount of money that the Australian community would have to expend for the ongoing care of the son.
Whilst it gives me no joy to come to that finding, it seems to me that on an analysis of everything that the AAT had said, that this is the task that the High Court has asked the Court at my level to undertake and it seems to me that that is the only conclusion that I could come to.
Therefore, that breach of procedural fairness that has been identified is not such to amount to a jurisdictional error. Therefore, I have no choice but to dismiss the application.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date:10 May 2019