Hussein v Minister for Home Affairs

[2018] FCCA 3801

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUSSEIN v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3801

Catchwords:
MIGRATION – Application for an Other Family Residents Class BU visa – application for judicial review of a decision of the Administrative Appeals Tribunal – definition of a “carer” in reg.1.15AA of the Migration Regulations 1994 (Cth) – rating requirement in a Carer Visa Assessment Certificate (CVAC) – allegation of fraud on the part of the Applicant’s migration agent and by extension fraud on the Tribunal – whether the Tribunal denied opportunity to obtain a CVAC – whether the Tribunal afforded the Applicant natural justice – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.65, 376, 378, 476

Migration Regulations 1994 (Cth), reg.1.15AA, Schedule 2 cls.836.21, 836.22, 836.212 836.221

Cases cited:

SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64

Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501

Applicant: SAMIRA KARIM EP HASSAN EL HAJ HUSSEIN

First Respondent: MINISTER FOR HOME AFFAIRS AND ANOTHER

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 719 of 2018

Judgment of: Judge Baird

Hearing date: 28 November 2018

Date of Last Submission: 28 November 2018

Delivered at: Sydney

Delivered on: 28 November 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Mr K. Eskerie, Sparke Helmore

ORDERS

1. Pursuant to s.130(1) of the Evidence Act 1995 (Cth), the document which is marked Confidential Exhibit MBP-A to the affidavit of Monica Perotti affirmed 21 November 2018 not be adduced as evidence, on the grounds that adducing it as evidence would disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, in this instance being the Migration Act 1958 (Cth), as contemplated by s.130(4)(e) of the Evidence Act.

2. The application be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 719 of 2018

SAMIRA KARIM EP HASSAN EL HAJ HUSSEIN

Applicant

And

MINISTER FOR HOME AFFAIRS AND ANOTHER

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore revised from transcript)

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal dated 27 February 2018.  The Tribunal affirmed a decision dated 24 October 2016 of a Delegate of the First Respondent, the Minister for Home Affairs, who was then the Minister for Immigration and Border Protection, not to grant the Applicant, Ms Karim, an Other Family Residence (Class BU) Carer (subclass 836) Visa. 

2. The Applicant, Ms Samira Karim Ep Hassan El Haj Hussein, was born in 1963, and is a citizen of Lebanon.  On 4 April 2011, Ms Karim applied for the Visa on the basis that she is a carer for her daughter, whom I will call ‘Ms Sponsor’, who lives in Australia, and is an Australian resident. 

3. Ms Sponsor is the sponsor for the Visa.  She is a single mother, with four small children.  At the time of the Visa application, she had a small girl, and twins, who were born prematurely.  She now has had another baby.  In the course of the hearing today the personal circumstances of the children and Ms Sponsor have been described. Given the reasons for my decision, and for the decision of the Tribunal, I do not need to set out specific detail about them and their personal circumstances in these published reasons and I have redacted my reasons accordingly.

Legislative framework

1. Pursuant to s.65(1) of the Act, the Minister is to refuse to grant the application for a visa if, among other things, the criteria prescribed for the visa by the Act or the Migration Regulations 1994 (Cth) have not been satisfied. At the time Ms Karim made her application for the Visa, one of the primary criteria for the grant of the class of visa for which she applied was as set out in cl.836.212 - that at the time that the Visa was applied for, the applicant claims to be the carer of an Australian relative. Additionally, one of the primary criteria set out under cl.836.22 in schedule 2 to the Regulations to be satisfied at the time of the decision, pursuant to cl.836.221, was that the Applicant is a carer of the person referred to in cl.836.212.  That is, at the time that Ms Karim applied for the Visa, she was required to satisfy the criteria that she claimed, inter alia, to be the carer of an Australian relative, and at the time of the decision about the grant of Visa, she had to satisfy the criteria that she is a carer of that person. 

2. Regulation 1.15AA provides for the definition of a “carer” referred to in cl.836.2, including 836.21, 836.22 and 836.221.  Regulation 1.15AA is as follows:

   (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:

   (a)the applicant is a relative of the resident; and

   (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, the rating that is specified in the certificate; and

   (iv)      because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and

   (ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (c) the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified by Gazette Notice for this paragraph; and

   (d) if the person to whom the certificate relates is not the resident, the resident has a permanent or long term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and

   (e) the assistance cannot reasonably be:

   (i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

   (ii)obtained from welfare, hospital, nursing or community services in Australia; and

   (f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.

   (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.

   (4)  In this regulation:

   Impairment Tables means the Tables for the Assessment of Work related Impairment for Disability Support Pension in Schedule 1B to the Social Security Act 1991.

3. There are four defined criteria, all of which must be met in order for a person to be certified as satisfying the requirements for a carer visa application. As can be seen, the definition of a carer requires that, among other criteria, that there be a certificate as to the presence of a medical condition of the sponsor, that the person to be cared for has an impairment at a rating that is specified, and additionally, because of the medical condition, the person has and will continue to have for at least two years a need for direct assistance in attending to the practical aspects of daily life, and some other criteria.

4. Both at the time that the Delegate made their decision in 2016, and at the time the Tribunal made its decision in 2018, according to the Impairment Tables, the impairment rating required was 30.  I note that at the time of the Delegate’s decision, the impairment rating was specified by Gazette, and at the time of the Tribunal hearing, the impairment rating was specified by the Migration (IMMI17/126:  Impairment rating) Instrument 2017 dated 10 October 2017.  In each case, as I’ve said, the requisite rating required was 30.

Background facts

1. In her Visa application, at item 67 in answer to the question: “What medical condition led to your relative needing assistance?” Ms Karim stated:

   Depression, insomnia, anxiety, poor concentration, postnatal depression, suicidal thoughts, and lower back pain.

2. Accompanying the Visa application was a Carer Visa Assessment Certificate, or CVAC, dated 22 December 2010 in which Ms Sponsor was stated to have an impairment rating of 30, and that she also met the other three criteria in reg.1.15AA(1): in sum, that she had a medical condition that is causing physical impairment of her ability to attend to the practical aspects of daily life, a need for direct assistance in attending to those aspects because of the medical condition, and because of the medical condition, she has and she will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life.

3. As Mr Eskerie has helpfully identified for the Court, Ms Karim’s Visa application was assessed as meeting the core criteria, and was placed in a queue.  As the Department of Immigration and Citizenship letter to Ms Karim dated 18 July 2013 states:

   Your application will progress to final processing when a place becomes available in the migration program and it can be released from the queue. 

   The placing of the application in the queue is not a guarantee that the visa will be granted.  You will still need to continue to satisfy the core criteria for another family visa at the time a decision can be made on your application, as well as completing any outstanding requirements.

4. The letter continued to say that once the application has been released from the queue, Ms Karim would be contacted by her case officer about any additional information or documents that may be required in order to make a decision.  Ms Karim made her Visa application with the assistance of a migration agent.  On 15 March 2011, Ms Karim signed a form 956 appointing Ms Eleonora Naief Francis Bashi, a registered migration agent, as her representative on her Visa application.  I note that the address of Ms Bashi is stated to be 230 William Street, Merrylands, New South Wales, 2160, and a PO Box, office telephone number and fax number are also recorded.

5. On 8 May 2012, Ms Karim appointed a Mr Ayoud Mustafa as her legal representative, signing a new form 956.  I note that Mr Ayoud’s business address, PO Box, telephone number and fax number are the same as Ms Bashi’s.  Ms Karim signed a further form 956, dated 19 June 2013, appointing a Mr Hulio Gash, registered migration agent, as her representative.  Mr Gash had the same address, phone number, facsimile number, and PO Box as the previous migration agents appointed by Ms Karim.  I infer that those agents are at least co-located in the same building, whether or not they are part of the same organisation.  Mr Gash appears to have subsequently withdrawn as representative but indicated that he wished to assist further, and then advised the Department that he was reappointed as Ms Karim’s representative, at least as at January 2016. 

6. In January 2016, the Department sent a letter to Mr Gash requesting an updated CVAC.  On 9 February 2016, Mr Gash on behalf of Ms Karim had provided evidence to the Department that Ms Karim made contact with Bupa Medical Services in regards to obtaining a current CVAC.  The Department subsequently sent a letter, dated 12 July 2016, to Ms Karim requesting more information for the Visa application and advising that the CVAC, previously provided on 6 January 2011 had expired, and requesting that Ms Sponsor’s Bupa medical appointment be followed up, together with a requirement for a statutory declaration from Ms Karim, and other documents.  In September 2016, the case officer assigned to Ms Karim’s Visa application matter followed up the request letter that had been sent to Mr Gash in January 2016 (and I infer the July 2016 letter) to which the Department had received no response.  The case officer followed up the lack of response with a telephone call and an email to a person called “Phillip”.  The Department advised that Ms Karim’s medicals were due to expire on 22 October 2016. 

7. Mr Gash requested an extension of time for providing the CVAC certificate, which request was granted by the Department.  On 16 September 2016, Mr Gash provided a CVAC certificate for Ms Sponsor which was dated 26 July 2016.  On 28 July 2016, Ms Sponsor was provided with a written explanation by a doctor from Bupa Medical Visa Services of the results of her medical assessment.  The letter stated, inter alia, that the assessing doctor was of the opinion that Ms Sponsor’s current medical condition does not meet all of the defined criteria for Ms Karim to satisfy the requirements for a carer Visa, and that a “not satisfied” certificate has been issued. 

8. The CVAC dated 26 July 2016 gave a total impairment rating of 20. Whilst Ms Sponsor was certified as having a medical condition that was causing physical, intellectual or sensory impairment of her ability to attend to the practical aspects of life, the certificate discloses that the assessment was that she did not need direct assistance in attending to the practical aspects of daily life because of the medical condition, and she did not satisfy the requirement that any need would continue for at least two years.

9. On 19 September 2016, the Department invited Ms Karim to comment on the adverse information, namely, that she had not satisfied the criteria, and that the updated CVAC was, as I have said, an assessment rating of 20.  On 11 October 2016, Ms Karim provided a statement to the Department outlining her daughter’s health conditions, the care she provides for her daughter, and advised that her daughter is receiving ongoing treatment with a private psychologist since the birth of her twins prematurely some 6 years ago, and provided some personal information concerning the twins’ general performance. 

10. Ms Karim also referred to her daughter’s personal circumstances leading to her leaving her marriage, as having left the children’s father who was physical, verbally and emotionally abusive, and claimed certain ill effects that her grandchildren have suffered due to those circumstances.  Ms Karim reiterated that she was the only person that can care for her daughter and grandchildren. 

11. On 24 October 2016, the Delegate refused to grant Ms Karim the Visa on the basis that she did not meet the requirements in cl.836.212, and thus, that she did not meet the definition of a “carer” in reg.1.15AA. The Delegate found that Ms Karim did not satisfy reg.1.15AA(1)(c) based on the CVAC dated 26 July 2016 which, as I have said, accessed Ms Sponsor as having an impairment rating of 20 under the Impairment Tables.

12. On 9 November 2016, Ms Karim applied to the Tribunal for review of the Delegate’s decision.  It appears that, at that time, Ms Karim continued to be represented by Mr Gash.  On 1 September 2017, the Tribunal invited Ms Karim to attend a hearing before it on 28 November 2017.  On 13 October 2017, the Tribunal wrote to Mr Gash requesting Ms Karim provide an updated CVAC certificate. 

13. On 23 November 2017, Mr Gash requested that Ms Karim’s Tribunal hearing be postponed as she would be applying for an assessment of a CVAC certificate.  The Tribunal consented to that postponement.  On 20 December 2017, the Tribunal invited Ms Karim to a rescheduled hearing on 31 January 2018.  Ms Karim attended the Tribunal hearing on 31 January 2017 with her daughter, Ms Sponsor.  I have had the benefit of a transcript of the Tribunal hearing on 31 January 2018, and I note that Ms Karim was assisted by an interpreter at the hearing.   Ms Karim informed the Tribunal member that there had been a delay in submitting an updated CVAC.

14. The Tribunal informed Ms Karim that the issue the Tribunal member had to consider is whether Ms Sponsor has been assessed as having the relevant impairment rating, and whether a CVAC has been provided which supports the finding.  Ms Karim informed the Tribunal member that her representative was at fault, that he never responded to her calls, and that he would only call her to tell her that she’s late already, and she submitted that her migration agent was the cause of delay. 

15. The transcript of the hearing discloses that on 12 January 2018 Ms Karim’s representative provided the Tribunal with a copy of a carer visa medical appointment for 25 January 2018. Ms Karim stated to the Tribunal member that the representative made an appointment which she and her daughter attended, but that the certificate had not yet been provided.  At the hearing, the Tribunal Member gave Ms Karim two weeks from the date of hearing to provide the updated CVAC to the Tribunal.  On 1 February 2018 Ms Karim provided a CVAC certificate dated 25 January 2018 to the Tribunal.  That CVAC assessed Ms Sponsor has having an impairment rating of 10 and otherwise that her assessment against the criteria remained as it did in the 2016 certificate.  In particular, Ms Sponsor did not meet the criteria of requiring a need for direct assistance in attending to the practical aspects of daily life because of a medical condition, nor because of a medical condition that she had a need for direct assistance in attending to the practical aspects of daily life that would continue for at least two years. 

16. On 27 February 2018 the Tribunal handed down its decision affirming the Delegate’s decision not to grant Ms Karim the Visa.  Thus, at the time of each of the decisions, of the Delegate and of the Tribunal, Ms Sponsor did not have an impairment rating of 30 (or more), that is, one of the preconditions for the Visa that Ms Karim seeks was not met.

The Tribunal’s findings

1. The Tribunal correctly identified that the issue before it was whether Ms Sponsor, being Ms Karim’s relative with a medical condition, has been assigned an impairment rating of at least 30, and detailed in a CVAC. 

2. The Tribunal at [10] of its decision, noted that the Department had provided information to the Tribunal in its file and issued a certificate pursuant to s.376 of the Act. Ms Karim was informed that the reason given in the certificate of non-disclosure of the information is that to disclose the information would be contrary to the public interest because the information was provided in confidence. The Tribunal decision records, as does the transcript of hearing, that Ms Karim was informed that the Tribunal was satisfied that the certificate is valid, and that the information the subject of the certificate related to Ms Sponsor’s health, and the care and support provided by Ms Karim.

3. The Tribunal decision states, at [12], that the core of the information subject to that certificate was put to Ms Karim at the Tribunal hearing. The Tribunal also noted that there was other information related to interdepartmental exchanges about the impairment ratings subject to non-disclosure which does not influence the review. Ms Karim was invited to put any submissions on the validity of the s.376 certificate. The Tribunal stated that Ms Karim was informed by it of the core of the information the subject of the certificate as follows (at [14]):

   14.    The Tribunal put the core of the information the subject of the certificate to the applicant under the relevant provision. The applicant was told that confidential information on the Department and Tribunal 's file is as follows:

   • The sponsor provided false information to the Department of Immigration and Border Protection about her mental illness and need for the applicant to provide her with care.

   • The sponsor is healthy and active.

   •The claims about the sponsor's health are in order to obtain a visa for her mother and then bring the remainder of her family to Australia.

   •The applicant does not support the sponsor.

1. Ms Karim responded orally, and stated that the claims are untrue.  She stated that her daughter is unwell and needs her help.  Ms Karim stated that she supports and cares for the sponsor and her four children, and she is fond of her grandchildren, and cannot leave them.

2. Ms Sponsor, also gave evidence before the Tribunal, as set out at [16] of the decision, namely that she needs her mother to provide her with assistance, that she suffers from depression, and her mother takes care of all the household needs. 

3. The Tribunal member referred to third party statements providing information about the breakdown of Ms Sponsor’s partner relationship, and that it was a result of family violence, and other information about Ms Sponsor giving birth to twins prematurely, her heath, the help provided by Ms Karim, and the school counsellor reports for two of the children.  The Tribunal then set out the definition of ‘carer’ in reg.1.15AA, and referred to the impairment rating (and the legislative instrument IMMI 17-126), which rating was at the time of the Tribunal’s decision 30. The Tribunal member then set out the history of the CVAC provided dated 26 July 2016, Ms Karim’s response commenting on that certificate, and the chronology of events in September 2017 through to the hearing in January 2018 to which I have already referenced.

4. At [25], the Tribunal records that Ms Karim had stated that the reason for the delay in providing the CVAC was due to her migration agent not providing her with proper advice, and that the Tribunal member told Ms Karim it is her responsibility to provide the Department or the Tribunal with information to support her application, and that complaints about her migration agent could be directed to the Department or to the Migration Agent’s Registration Authority.

5. As I have noted, the Tribunal provided Ms Karim with additional time to provide the CVAC, and Ms Karim provided it on 1 February 2018. The Tribunal also refers to receiving a covering letter from a friend of Ms Karim in which the friend stated that Ms Karim and Ms Sponsor were shocked at the outcome of the CVAC, and challenges the process to obtain the CVAC, and inappropriate behaviour by the migration agent.  The Tribunal also refers to other information provided to it by Ms Karim from Bupa Medical Visa Services, the CVAC provider.  That material informs Ms Sponsor of the process to follow if she is not satisfied with her medical examination and wants a reassessment. 

6. The Tribunal member recorded that, at the time of the decision, no further information had been received from Ms Karim.  At [30], the Tribunal concluded that the CVAC met the requirements for a valid certificate, that Ms Sponsor had been assessed as having an impairment rating of 10 which is under the required rating of at least 30, and, therefore, cl.836.221 was not met.  The Tribunal concluded that Ms Karim did not meet the criteria for a subclass 836 visa, and affirmed the decision not to grant the Visa.

Grounds of review

1. By application filed on 19 March 2018, Ms Karim advances 3 grounds of review as follows (without alteration):

   1. I deny the allegation. I am indeed a carer for my daughter but the migration agent, Phillip Bachi, misled me and my daughter and took thousands of dollars toward a certificate from BUPA and now I understand that my daughter did not get or meet the requirements for a Carer as she scored less than 30 points.

   2. The Tribunal failed to take evidence from the migration agent who lied to us and contrary to the decision of the Tribunal I have been denied an opportunity to obtain BUPA medical assessment and I do not accept the Tribunal Member’s decision that I am responsible to provide information rather the migration agent who has been cheating us and failed to provide the requested information.

   3. The Tribunal failed to accord natural justice and fairness and give me further time to provide the Certificate from BUPA.

2. The Minister’s solicitor has informed the Court that there are two s.376 certificates issued by the Department on its file (not one, as stated by the Tribunal). The first certificate, dated 3 April 2017, relates to information from a confidential source. The second s.376 certificate, dated 9 December 2017, relates to interdepartmental exchanges about the impairment ratings. In relation to the first certificate, the Minister makes a claim of public interest immunity (PII), pursuant to s.134(e) of the Evidence Act 1995 (Cth). Sub-sections 130(1) and (4)(e) are as follows:

   (1)     If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

   …

   (4)     Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:

   …

   (e)     disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or

   …

3. I have before me an affidavit from Ms Monica Perotti of the Minister’s solicitors in which Ms Perotti sets out the grounds for the Minister’s PII claim, and that the document marked Confidential Exhibit MBP-A discloses or would enable a person to ascertain the existence or entity of a confidential source of information in relation to the enforcement or administration of a law of the Commonwealth of Australia or a State. I have considered the material, and accepted the claim, and in the course of the hearing made orders that the document the subject of the first s.376 certificate being Confidential Exhibit MP-A, not be disclosed to any person, including Ms Karim, other than the Court. The consequence is that I will order that the document, and the information disclosed by the document not be adduced as evidence in this proceeding.

4. The second s.376 certificate referred to documents in the nature of Departmental policy advice. No claim of privilege was made, and those documents were received into evidence, and a copy provided to Ms Karim. I have considered the documents the subject of both s.376 certificates. The Tribunal was concerned with the sole issue of whether a current CVAC was issued, and what the impairment rating was on that certificate. So complaints from other sources were not part of the Tribunal’s decision, and I have so informed Ms Karim.

Proceedings before the Court

1. Before me today, Ms Karim appeared unrepresented, but with the benefit of an interpreter, and has made both oral submissions and written submissions.  I have considered both.  Ms Karim’s oral submissions were in substance to the effect that her daughter needs her;  her daughter has four small children who are sick;  they have a number of behavioural and other issues and concerns; and her daughter is sick as well.

2. Ms Karim reiterated her daughter’s history, that her husband left her, and Ms Karim assured the Court that Ms Karim’s husband in Lebanon had agreed to Ms Karim coming to Australia to look after her daughter.  Ms Karim also made submissions in relation to the behaviour of her migration agents, including a Mr Phillip Bashi/Bachi who she says took some $20,000 from her for the Visa process, and assured her that she would get the Visa.  As to her daughter’s current health, Ms Karim stated that she looked after her daughter, gave her showers, and that her daughter now had to have an operation for a kidney stone in the near future. 

3. Ms Karim also spoke of family disputes relating to her niece which are not appropriate or necessary to go into here.  Ms Karim did say that she never saw her agent, Mr Gash, but when I directed her attention to the signed appointments of agent in evidence in the Court book Ms Karim accepted that the signatures were hers, but said that she had just been provided with documents as she was brought to the migration agent’s office and given documents to sign but she did not know what she was signing. 

Consideration

1. I have considered Ms Karim submissions.  However in relation to the migration agents, the evidence is that the migration agents were, on the face of the form 956s, appointed by Ms Karim, and whilst there may have been issues with delay, and some poor service, there is no suggestion that they had any impact on the Tribunal’s conduct of the hearing or on the outcome of the hearing.  This is evident because the Tribunal hearing was concerned with what the CVAC revealed, and not with delays by the migration agents.  Further, Ms Karim was given an extension of time to provide a current CVAC, and she provided one within the extended time allowed.

2. I have said, I note that the avenues for complaints about the behaviour of migration agents have been identified to Ms Karim by the Tribunal.  Ms Karim also asked that I listen to the CD of the hearing.  I have declined to do so, not the least because it is not in evidence.  The transcript of the Tribunal hearing is in evidence, however, and I have read that transcript of hearing. 

3. In relation to Ms Karim’s grounds of review, whilst in her written submissions she said that she did not wish to pursue them today except in relation to the migration agent, nonetheless, I have had regard to those, and I have invited the Minister’s solicitor to make submissions on those grounds. 

Ground 1

1. As to the first ground that Ms Karim contends she was misled by a migration agent, Philip Bachi (who from the Court book in evidence I understand is also known by the name ‘Bashi’), the Minister has referred to the High Court’s decision in SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64. The High Court there drew inferences about the conduct and motivation of the agent in question in order to uphold the finding of fraud. In that case, the agent falsely held himself out to the applicants as a registered agent and a solicitor when he was neither. He took their money for a service that he was prevented by law from performing; gave deliberately false advice which was designed to stop them from attending the Tribunal hearing, and if his conduct had been discovered he risked imprisonment for 10 years. The Court summarised the position in the following way at [51]-[52]:

   ...In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud "on" the tribunal. The consequence is that the decision made by the tribunal is properly regarded, in law, as no decision at all. This is because, in the sense of the authorities, the jurisdiction remains constructively unexercised.

2. Any finding of fraud should specify what was said that is fraudulent, how it was fraudulent, and how it was acted on preferably in one place.

3. As the High Court in SZFDE states, in order that there be fraud, the agent must be fraudulent in a way that affects the Tribunal’s decision-making process.  The fact of a failure to inform or bare negligence or inadvertence is not necessarily sufficient to give rise to a fraud on the Tribunal: Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 at [30]-[33].

4. The transcript of the hearing before the Tribunal indicates the Tribunal member made clear to Ms Karim and her daughter that Ms Karim was required to provide an updated CVAC, and, indeed, Ms Karim did provide an updated CVAC.  Thus, if there are any alleged fraudulent dealings by a migration agent, those actions did not have the effect of stultifying the operation of the natural justice provisions in Division 5 of Part 5 of the Act, the relevant part of the Act applicable to this Visa application.  Indeed, because the Tribunal’s decision turned on whether Ms Karim’s daughter had the requisite impairment rating of 30, and she did not, the only decision open to the Tribunal was to affirm the refusal of the Visa.  Ground 1 is not established. 

Ground 2

1. In ground 2 Ms Karim contends that the Tribunal failed to take evidence from the migration agent who lied to her and her daughter, and that Ms Karim was denied an opportunity to obtain a Bupa medical assessment.  It is clear from the transcript of hearing that Ms Karim did not request any evidence be taken from the migration agent at the hearing. In any event, the Tribunal noted that any delay in providing the CVAC might have been due to the migration agent, and gave Ms Karim additional time to provide the CVAC.  Secondly, at the factual level, Ms Karim did have the opportunity to obtain a Bupa medical assessment, and, indeed, she provided one to the Tribunal that was completed by Bupa, albeit that it was provided after the hearing but before the decision was made.  Ground 2 also must fail.

Ground 3

1. In ground 3 Ms Karim contends that the Tribunal failed to accord natural justice and failed to give her further time to provide “a certificate from Bupa”.  I take the Bupa certificate to mean the CVAC certificate.  Ground 3 also fails at the factual level because the certificate was provided, and time was given in order for that to be done. 

2. I should also note that the requirements of the natural justice hearing rule are exhaustively stated in Division 5 of Part 5 of the Act in relation to matters that the division deals with. 

3. In the present case, because the issue that disposes of the Visa application is the impairment rating that Ms Sponsor has at the time of the decision, and where there is no breach of the Tribunal’s procedural fairness requirements because Ms Karim did get the additional time to provide the certificate, and there is nothing else that has been particularised to me today, the contention that Ms Karim was not afforded natural justice does not have content.  It follows that ground 3 is not made out.

Other matters

1. The Minister has made further submissions in relation to the s.376 certificates; although those are not grounds raised by Ms Karim. I can dispose of those briefly by saying that even if there was some technical breach by the Tribunal of procedural fairness, having regard to the basis of the Tribunal’s decision which turned on the impairment rating, which was a prerequisite for the Visa criteria being met, it would be futile, anyway, to grant Ms Karim the relief she seeks because, whether I provide a forward-looking test or backward-looking test, the outcome of the review cannot have been any different. I adopt the Minister’s reference to SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR at 1190.

2. The Tribunal directed, under s.378(1) of the Act, that the Tribunal decision and the statement of reasons must not be published, in the light of sensitive personal information about Ms Karim’s daughter that was included in the decision. The Minister’s solicitor has submitted that the decision does not come within a restriction of publication direction as set out in s.378(1)(a), (b) or (c) of the Act. For the purposes of this judgment it will be sufficient, and I will ensure that, in any published reasons, the Court will omit specific details of information relating to the personal circumstances of Ms Karim’s daughter or de-identify that information.

Conclusion

1. The conclusion I have reached is that I dismiss the application.  Because I have dismissed the application, it follows that the Minister may seek costs. 

2. I note that the amount that the Minister’s solicitor, Mr Eskerie seeks, is less than the schedule scale in the Court, and that is to be commended in the circumstances.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Baird

Date: 19 December 2018