Mitra v Minister for Immigration and Border Protection
[2019] FCA 1590
•27 September 2019
FEDERAL COURT OF AUSTRALIA
Mitra v Minister for Immigration and Border Protection [2019] FCA 1590
Appeal from: Mitra & Ors v Minister for Immigration & Anor [2016] FCCA 3043 File number: NSD 2146 of 2016 Judge: BROMWICH J Date of judgment: 27 September 2019 Catchwords: MIGRATION – appeal from orders of the Federal Circuit Court dismissing an application for judicial review – where Migration Review Tribunal affirmed a decision to cancel the appellant’s visa due to incorrect information being provided on visa application form regarding renal failure – where appellant asserts she only became aware of kidney disease after completing application form – where condition was known in the six month period before arriving in Australia and not disclosed – held: appeal dismissed Legislation: Acts Interpretation Act 1901 (Cth) s 19A
Migration Act 1958 (Cth) ss 101, 104, 107, 109, 375A, 438
Migration Regulations 1994 (Cth) reg 2.41
Date of hearing: 27 August 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 45 Counsel for the Appellant: Dr A McBeth Solicitor for the Appellant: Clothier Anderson & Associates Counsel for the First Respondent: Mr T Goodwin Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 2146 of 2016 BETWEEN: SIMA MITRA
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMWICH J
DATE OF ORDER:
27 SEPTEMBER 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMWICH J:
This is an appeal from orders made by a judge of the Federal Circuit Court of Australia. On 25 November 2016, his Honour dismissed an application for judicial review of a decision of the former Migration Review Tribunal, which is now a part of the second respondent, the Administrative Appeals Tribunal. On 1 September 2014, the Tribunal affirmed a decision of a delegate of the first respondent, now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to cancel the appellant’s Subclass 475 (Skilled – Regional Sponsored) visa.
The visa had been cancelled by the delegate on 10 June 2014. The delegate was satisfied that the appellant breached s 101(b) of the Migration Act 1958 (Cth) by providing incorrect information on her visa application form. The appellant had indicated that she did not have a kidney disease on her application dated 16 August 2010, whereas medical information considered by the delegate was said to indicate that she could not have been unaware of her kidney disease at that time. The delegate further found that the appellant breached s 104(1), which required the appellant to notify an officer of any changes in circumstances which would make an answer in an application form incorrect.
The Tribunal found that there was insufficient evidence to make a finding as to whether the appellant breached s 101, but affirmed the cancellation on the basis of non-compliance with s 104(1). This was because the appellant was aware of her condition six months prior to entering Australia with her family, yet did not inform the department either before or after their arrival.
On 13 December 2016, the appellant lodged a notice of appeal in this Court. The existence of a certificate under s 375A of the Migration Act 1958 (Cth), and that certificate being before the Tribunal, emerged after the primary judge’s decision. The appeal was adjourned twice by consent pending the outcome of appeals in the Full Court and the High Court concerning certificate provisions in the Migration Act.
The appellant now proceeds upon an amended notice of appeal filed by consent, and with leave of the Court, on 13 August 2019.
Visa cancellation provisions of the Migration Act and the Migration Regulations
Part 2, Division 3, Subdivision C of the Migration Act deals with the cancellation of visas granted on the basis of incorrect information. Subdivision C requires the provision of correct information in visa applications and passenger cards, and proscribes the use of bogus documents. If information in a visa application form is later found to be incorrect, or is rendered incorrect by a change in circumstances, the visa applicant is required to notify an officer of the Department (being the Department responsible for the Migration Act per s 19A of the Acts Interpretation Act 1901 (Cth)). Of particular relevance are the following provisions in Subdivision C:
(1)For the purposes of Subdivision C, an answer to a question is incorrect even if the applicant did not know that it was incorrect: s 100.
(2)Visa applicants are required to answer all questions and to give or provide correct answers in their visa application forms: s 101.
(3)An applicant must, as soon as practicable, inform an officer in writing of any new circumstances that make an answer in a visa application form incorrect, and advise what the correct answer is: s 104.
(4)If, as in this case, the visa is granted to a person outside Australia, the period during which there is an obligation to notify of any change of circumstances that renders an answer given in the application form incorrect runs from after the application is made until prior to immigration clearance (in practical terms, the date of entry into Australia): s 104(1) and (3).
(5)If an applicant becomes aware that an answer in a visa application form is incorrect, he or she must, as soon as practicable, notify an officer of the Department of that incorrectness and of the correct answer: s 105.
(6)Each of the above obligations is not affected by the fact that the Minister or an officer had access to any information: s 106.
(7)Section 107 provides that the Minister may give notice of an intention to cancel a visa for non-compliance with, inter alia:
(a)the s 101 obligation to give correct answers; and
(b)the s 104 obligation to notify of any change in circumstances that renders an answer given incorrect,
so that the visa applicant has an opportunity to address the alleged breach.
(8)Any response to a s107 notice must be considered: s 108.
(9)The Minister, and thus a delegate and the Tribunal, may cancel or affirm the cancellation of a visa under s 109 after:
(a)deciding there was non-compliance, considering any response by the visa holder (first stage); and
(b)having regard to any prescribed circumstances (second stage).
(10)The relevant prescribed circumstances for the second stage are set out in reg 2.41 of the Migration Regulations 1994 (Cth) as follows:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
(d) the circumstances in which the non-compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non-compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non‑compliance;
(i) any breaches of the law since the non-compliance and the seriousness of those breaches; and
(j) any contribution made by the holder to the community.
(11)Sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent: s 111.
(12)A notice under s 107 does not preclude a further notice asserting a different act of non-compliance; and non-cancellation despite an act of non-compliance does not preclude cancellation for a different act of non-compliance: s 112.
Background
The appellant, a citizen of Bangladesh, applied for a Subclass 475 visa on 16 August 2010. Almost three years later, on 1 August 2013, and not long before the grant of the visa on 11 September 2013, she was medically assessed at a medical clinic in Bangladesh and given a health rating of “A Grade”. The appellant, her husband, and her child entered Australia on 29 March 2014. Thus, the period during which she was required to give notice in writing of any change in circumstances rendering a visa application form answer incorrect was from 17 August 2010 until 28 March 2014. As will be apparent, the part of that period ultimately of interest to the Tribunal was the last six months from October 2013 to March 2014.
Soon after arriving in Australia, the appellant presented to Liverpool Hospital in Sydney for a one-off dialysis treatment. She then travelled to Albury-Wodonga. On 3 April 2014, she presented to Albury Hospital. She indicated she expected to undergo dialysis regularly by the local renal dialysis service. That led Dr Mah, a Commonwealth Medical Officer (CMO) at Albury Wodonga Health (AWH), to inform the Minister of a number of concerns he had about the appellant.
On 26 May 2014, a delegate of the Minister emailed to the appellant a notice under s 107 of an intention to consider the cancellation of her visa under s 109 of the Migration Act (s 107 Notice). The s 107 Notice alleged, inter alia, that the appellant had breached s 104 of the Migration Act because she failed to inform an officer of the Department of changes to her health after the day she lodged her application for the visa.
The s 107 Notice referred to answers given to health-related questions in the visa application form which had been answered “no” to indicate a lack of any medical condition or the lack of any expectation of incurring medical costs, whereas the information available to the delegate indicated that she could not have been unware of her renal disease as it would have taken 12 years to develop to the point of renal failure.
In relation to s 104, the s 107 Notice included the following (at pp 4-5):
On 30 July 2013 you presented for the purpose of a medical examination at IBN Sina Medical Check-up Unit in Bangladesh in relation to your application for your VF- 475 Regional Sponsored visa. The outcome of this medical examination was that you met the health requirements for your VF- 475 Regional Sponsored visa and the visa was subsequently granted on 11 September 2013.
CMO AWH Dr Mah informed a Senior Medical Officer of the Department that you stated you were well until one week after your examination on 30 July 2013. You stated that it was at that point in time that you were diagnosed with renal failure and you became aware of your requirement to have ongoing dialysis treatment. You subsequently travelled to Australia on 29 March 2014.
On 22 May 2014 I had a telephone conversation with you and you stated that you became aware of your medical condition on 27 October 2013.
[Section 104 is then reproduced]
As a senior health professional with AWH I accept CMO AWH Dr Mah is a very credible source. Dr Mah has submitted that you stated that from one week after 30 July 2013, you were aware that an answer you gave to a question on your application form was incorrect due to your new circumstance/s and you failed to inform the department as soon as practicable after you became aware of your new circumstance/s. Even though the information you stated to me on 22 May 2014 was different from the information we received from CMO AWH Dr Mah, you confirmed that you were aware of your condition for a substantial time before you travelled to Australia. This was in the period after you lodged your application and before you were immigration cleared on 29 March 2014. Therefore the information before me indicates that you have breached Section 104 of the Migration Act 1958.
The appellant responded by email to the s 107 Notice on 8 June 2014. In part of that email, she:
(1)said that she was unaware of a “Change of Circumstances notifications after the visa grant”;
(2)said that in October 2013, after she was granted the visa the previous month, she suddenly got a high fever and had other symptoms and was diagnosed with diseased kidneys;
(3)said that she underwent dialysis;
(4)said that she knew she had to bear treatment expenses in Australia until she obtained permanent residency;
(5)said that she attempted to gather information on the costs of dialysis in Australia through the internet, but found no information;
(6)said that she assumed that the cost of dialysis would be around AUD$100; and
(7)gave details of her and her family’s personal situation, including that her husband, a doctor qualified to practice in Bangladesh, intended to sit for all tests to become registered in Australia and work as a rural general practitioner, and that, when that occurs, the applicant will be able to pay her medical bills in relation to her dialysis.
The delegate cancelled the appellant’s visa, giving grounds that were in substance the same as foreshadowed in the s 107 Notice (that is, a contravention of both ss 102 and 104), exercising the discretion in favour of cancellation.
Before the Tribunal
The Tribunal:
(1)was not satisfied that there had been non-compliance with s 101;
(2)was satisfied that there had been non-compliance with s 104 as described in the s 107 Notice because the appellant had admitted as much, albeit in circumstances in which she said that she was not aware of the obligation (an assertion that the Tribunal did not accept, inter alia because it was spelt out in the notification that the visa had been granted);
(3)considered both the appellant’s response to the s 107 Notice and each of the (non-exhaustive) prescribed circumstances in reg 2.41; and
(4)recorded its reasons for declining to grant an adjournment to enable the appellant to obtain further medical evidence because:
(a)there was no dispute that she had renal failure;
(b)her own evidence made it clear that she was aware of her condition before she arrived in Australia; and
(c)the hospital where she was being treated was in the best position to advise of the costs involved, with there being no foundation for an allegation that AWH was biased.
It will be necessary to consider the Tribunal’s reason in more detail when addressing the grounds of appeal in this Court.
Before the primary judge
The appellant’s judicial review application raised two grounds, being:
(1)that the Tribunal acted unreasonably in refusing to wait for a further medical report (which was sought to be provided after the Tribunal hearing) in circumstances in which it was said that a major issue was whether the estimated cost of care had been exaggerated; and
(2)that the Tribunal confused the question of the power to cancel with the question of whether that power should be exercised, suggesting that the Tribunal incorrectly did not consider it relevant to know when the appellant first became aware of her true condition.
Each ground of review ultimately received short shrift from the primary judge, which followed from a detailed consideration of the Tribunal’s reasons earlier in his Honour’s judgment.
In relation to the first ground of review, the primary judge found that it was reasonably open to the Tribunal to consider whether a further medical opinion was relevant or necessary, and to do so by reference to the reasons that were given. His Honour concluded that the Tribunal’s reasons for not waiting for a further medical report did not lack an intelligible justification for the conclusion reached.
In relation to the second ground of review, the primary judge found that the Tribunal had considered when the appellant first became aware of the change in her medical condition in the course of finding that she had deliberately chosen not to inform the Department because it was likely that she and her family would not be permitted to enter Australia.
Appeal ground 1
The appellant’s first ground of appeal was as follows:
The Federal Circuit Court erred by failing to find that the decision of the Tribunal was affected by jurisdictional error in that the Tribunal failed to give proper consideration to the circumstances in which the non-compliance occurred and/or misconceived of its task or asked itself the wrong question in treating the issue of the extent of the appellant’s awareness of her medical condition and the nature and severity of the condition before entering Australia as not relevant to the cancellation of the appellant’s visa.
The particulars in support of this ground were as follows:
a)The circumstances in which non-compliance occurred comprise a prescribed mandatory consideration pursuant to s 109(1)(c) of the Migration Act 1958 and reg 2.41(d) of the Migration Regulations 1994 in the exercise of the discretion under s 109 to cancel the visa.
b)The appellant gave evidence that she was unaware of her condition until after the visa was granted.
c)The appellant sought to adduce specialist medical evidence to support her claim to have been unaware of the existence and/or severity of her condition until after the visa was granted, but was prevented from doing so by the Tribunal’s refusal to adjourn for that purpose.
d)The knowledge and intention of the appellant were relevant to the exercise of the discretion under s 109 to cancel or not cancel the appellant’s visa.
e)The reasoning of the Federal Circuit Court at [36]-[38] is in error in failing to find that the Tribunal asked itself the wrong question and/or failed to give proper consideration to the issue of the timing and extent of the appellant’s knowledge of her condition in relation to the exercise of the Tribunal’s discretion under s 109.
The appellant advances this ground by reference to the following circumstances before the Tribunal that were relevant to the second stage, once non-compliance with s 104 had been established and the Tribunal was considering the exercise of the discretion to cancel the visa under s 109, when read with reg 2.41:
(1)the timing of the appellant’s symptoms and the severity of her condition; and
(2)the lack of awareness on the part of the appellant of the need to notify of a change in her health.
The second limb at (2) above goes nowhere. The unchallenged finding of the Tribunal was that the appellant knew of her obligation to advise of changes in her circumstances, including as to her health. The Tribunal found that the information about the appellant’s kidney disease was withheld in the knowledge that it would most likely have prevented her and her family being allowed to enter Australia.
As to the timing of the appellant’s symptoms and the severity of her condition, the appellant’s case before the Tribunal was that she first became aware that she had a kidney condition in October 2013 and had not previously been aware of any symptoms of kidney disease. She sought to obtain medical evidence to support that contention, but was denied the opportunity to do so when the Tribunal refused an adjournment. She submits that the point at which she was aware of her symptoms was a matter relevant to the exercise of the discretion in s 109, both as an element of “the circumstances in which the non-compliance occurred” (per reg 2.41(d)), and as a submission made by her more generally as to why her visa should not be cancelled in the exercise of discretion. She submits that the extent of her apparent illness at the time of immigration clearance on 29 March 2014 was relevant to the exercise of the discretion in s 109, because it went to the significance of the change in circumstances that was not reported.
The appellant submits that the severity of her condition and therefore the foreseeability that ongoing dialysis would be required at the time of immigration clearance were plainly relevant. She submits that the Tribunal, in putting to one side her submissions about when her symptoms became apparent and the extent of her illness at the time of her arrival in Australia, on the ground that such matters could not affect the finding of non-compliance with s 104, erred in failing to recognise that this was also relevant at the second stage of the exercise of discretion under s 109 once non-compliance with s 104 had been established. She therefore submits that the Tribunal failed to “acquit” the statutory task required by s 109.
The gravamen of the first limb of this appeal ground is that the Tribunal, at the s 109 discretionary cancellation second stage, should have had regard to her claim that she first knew about her medical condition in October 2013. The appellant contends that this amounted to a claim that her state of mind was an honest one in the period between the time of the panel doctor’s assessment as to her health in July 2013 and the time of the grant of the visa on 11 September 2013.
The complaint centres on [32] of the Tribunal’s reasons. The Tribunal said at that point (emphasis added):
The information before the Tribunal is that the applicant has a kidney condition which requires twice weekly dialysis which she is currently receiving in hospital. The applicant was aware that she had this condition prior to her arrival in Australia. Her evidence is that she had been receiving dialysis in Bangladesh since October 2013. The applicant claims that she did not have any symptoms prior to the grant of the visa and only found out about her condition in October 2013, and has provided copies of medical documents which support this claim. The Tribunal also acknowledges that the applicant was cleared by a panel doctor in Bangladesh on 30 July 2013. It was submitted that this doctor was appointed by the Australian Government, although no such information was provided to the Tribunal that this was the case. Whether or not it is plausible that there would not have been any indication of kidney disease at the time she was examined for visa purposes, the applicant knew of her condition by October 2013. Thus, even if the doctor was appointed by the Australian Government to conduct medical examinations for visa purposes and the applicant only became aware of her condition in October 2013 after the visa was granted, the Tribunal considers that she would not have been immigration cleared if the department was informed of her condition prior to her entry. It is likely that her visa would have been cancelled prior to her entry if it had been known by Immigration that she had renal failure.
When asked at the appeal hearing where it was in the material before the Tribunal that the appellant claimed to have had an honest state of mind, counsel for the appellant said that the additional claim was “made in fragments”. None of the fragments the Court was taken to advanced anything of substance going beyond what was identified by the Tribunal as the claims that were squarely put before it.
In particular, the Tribunal recorded a claim at [32], reproduced at [27] above, that the appellant knew nothing about her condition until October 2013. The Tribunal gave her the benefit of the doubt in that respect, but found that whether or not that was plausible, she knew of her condition by October 2013, and chose not to reveal it because of the natural and predictable consequences that would flow from doing so. The Tribunal was not under any obligation to tease out a more nuanced claim than was expressly made or squarely arose. Indeed, I remain unable to see such a claim even with the degree of searching that was urged upon this Court.
The real problem for the appellant is that, taking her case at its highest, even if the Tribunal had gone further and found that she had been completely honest up until October 2013 when she says she first knew about her illness, this could not have made any difference to the outcome. That is because it could not have affected the Tribunal’s conclusion that at least by October 2013 she did know about her condition, and that she had chosen not to inform the Department because it was likely that she and her family would not be permitted to enter Australia.
I am unable to discern any error by the Tribunal as asserted by this ground of appeal, and therefore necessarily no error on the part of the primary judge in reaching the same conclusion. This ground of appeal must therefore fail.
Appeal ground 2
The appellant’s second ground of appeal was as follows:
The Federal Circuit Court erred by failing to find that the decision of the Tribunal was affected by jurisdictional error in that the Tribunal’s refusal to exercise its power to adjourn the hearing for the appellant to obtain a specialist medical report was unreasonable in the circumstances and/or denied the appellant procedural fairness.
The particulars in support of this ground were as follows:
a)The appellant was on notice that the Tribunal had before it medical evidence, inter alia, that the appellant’s “history of renal disease was estimated as 12 years, with progressively worsening renal function” and the appellant would have had symptoms at the time of her immigration health examination in July 2013.
b)The Tribunal notified the appellant that that evidence may be the reason or part of the reason for affirming the decision to cancel her visa.
c)The appellant sought to meet that evidence by seeking an adjournment to enable her to obtain a specialist medical report from a nephrologist.
d)The Tribunal was aware that the appellant had made an appointment with the nephrologist for 29 October 2014 and was aware of the reason for seeking the report.
e)The Tribunal refused the adjournment and made a decision on 1 September 2014.
f)The Tribunal’s refusal to grant a short adjournment in the circumstances denied the appellant the opportunity to meet the case against her and was legally unreasonable.
This ground is a renewal of the first ground of review before the primary judge. The appellant’s case is that once the issue of whether she would have known about her condition much earlier than October 2013 was raised, she was entitled to be given an adjournment so as to meet that suggestion. She asserts that this was not confined to the first stage question of non-compliance with s 104, but also went to the second stage exercise of the cancellation discretion in s 109. The appellant’s argument is another way of approaching the issue raised by ground 1 as to her asserted lack of knowledge about her condition before October 2013.
The medical evidence that the appellant sought to obtain could not have improved the circumstance that, by her own admission and supported by medical evidence that she produced from Bangladesh, from October 2013 she required dialysis twice a week in the six-month period immediately before she came to Australia. At most, that additional evidence might have gone some way to showing that the benefit of the doubt afforded to her by the Tribunal to the effect that her symptoms were not apparent to her until October 2013 was well founded, but she already had the benefit of that being effectively assumed in her favour. There was nothing unreasonable in declining an opportunity to prove as a fact something that, overtly, was not being used adversely.
Taken at its highest, the appellant’s argument suggests that it would be possible, long after the event, to demonstrate that a kidney condition is capable of advancing from not causing any illness or symptoms at all, to requiring twice weekly dialysis in a matter of, at most, a few months. But even assuming that is so, it goes no further than amounting to an emphatic disagreement with the conclusion by the Tribunal that the proposed evidence was not relevant to the task at hand, which was focused on the period from October 2013 to March 2014. It does not establish any kind of unreasonableness, let alone the high hurdle of legal unreasonableness.
This ground of appeal must fail.
Appeal ground 3
The appellant’s third ground of appeal was as follows:
The Federal Circuit Court erred by failing to find that the appellant had been denied procedural fairness by the failure of the Tribunal to disclose the unredacted certificate issued under s 375A to the appellant and/or the failure to give the appellant an opportunity to make submissions about the certificate, or alternatively, by failing to find that the Tribunal’s failure to provide an unredacted copy of the s 375A certificate constituted jurisdictional error for breach of s 362A.
The particulars in support of this ground were as follows:
a)The Tribunal had before it a certificate issued under s 375A to the effect that certain information before the Tribunal should not be disclosed to the appellant.
b)The appellant was made aware of the existence of the certificate in response to a request for the written material before the Tribunal.
c)The appellant was provided with a redacted copy of the certificate, in which the reason for not disclosing the information covered by the certificate to the appellant was deleted.
d)By failing to provide an unredacted copy of the certificate, including the reason that it was purportedly contrary to the public interest to provide particulars of the information, the appellant was denied procedural fairness and was prevented from making submissions as to the validity of the certificate.
e)The Tribunal’s failure to disclose the unredacted certificate denied the appellant procedural fairness in that it prevented her from making submissions as to the validity of the certificate.
f)The Tribunal’s failure to disclose the unredacted certificate further denied the appellant procedural fairness in that it potentially affected the manner in which she ran her case and the evidence that she adduced before the Tribunal.
g)The breach of procedural fairness was material to the decision.
h)Further and alternatively, the Tribunal’s failure to provide the unredacted certificate to the appellant, in breach of s 362A of the Migration Act, constituted jurisdictional error as 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.
i)The breach of the statutory procedure was material to the decision.
The basis for this ground only arose after the primary judge’s decision. However, the Minister did not object to this being raised as a ground of appeal because the issue only arose after the hearing before his Honour.
The substance of the complaint is that the material that was improperly kept from the appellant was that the medical clinic at which she was examined on 1 August 2013, and by whom she was given a health rating of “A Grade” was under investigation. She asserts that had she known this, she would not have placed reliance on that medical assessment. Her counsel suggested at the hearing of the appeal that she could have called other evidence, but were unable to explain how that could be so when, on her evidence, she knew nothing about having any medical condition until October 2013. The most that she could have done was abandon any reliance on the 1 August 2013 “A Grade” medical assessment, which was not used against her in any event. As has already been made clear, the Tribunal confined its attention to the six-month period in which the appellant admitted that she knew she had a serious medical condition, and did not disclose it to the Department, being from October 2013 to March 2014.
It was put to counsel that ground 3 seemed to stress against ground 1, because it suggested that the Tribunal should have had this material before it, and given her a chance to respond to it, rather than it not be in contention at all. It was not explained how she could have improved upon the Tribunal giving her the benefit of the doubt that she first became aware of her condition when she said that her symptoms first emerged in October 2013.
Far from the apparently invalid certificate denying the appellant an opportunity to respond to adverse material, and therefore denying her the real possibility of a favourable result, the effect of the certificate was to keep out of consideration material that might well have caused her to lose the benefit of the doubt. While there may have been a technical denial of procedural fairness, it is not necessary to decide that as it has not been shown to be capable of amounting to a jurisdictional error in any event.
This ground of appeal must also fail.
Conclusion
The appeal must be dismissed. The appellant must pay the Minister’s costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. Associate:
Dated: 27 September 2019
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