Qazizada v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 250
•19 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Qazizada v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 250
File number(s): SYG 1901 of 2022 Judgment of: JUDGE GIVEN Date of judgment: 19 March 2024 Catchwords: MIGRATION – Where Tribunal failed to comply with section 359A obligation in relation to information which would have been a potential basis for affirming the decision, by ultimately finding on an alternative basis Legislation: Migration Act 1958 (Cth) ss 65, 359A, 376, 424A, 476
Migration Regulations 1994 (Cth) regs 1.03, 1.15AA, cl 116.221 of Schedule 2
Cases cited: Biyiksiz v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 814
DYI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 612
El-Chahini v Minister for Immigration and Border Protection (2008) 74 AAR 224
Mariam v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 436
Minister for Immigration and Border Protection v Nguyen (2017) 254 FCR 522
Minister for Immigration and Citizenship v SZLFX (2009) 258 ALR 448
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon (2023) 298 FCR 400
MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 18
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
VCAT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 141
Division: General Federal Law Number of paragraphs: 92 Date of last submission/s: 23 November 2023 Date of hearing: 26 April 2023 Place: Sydney Counsel for the Applicant: Mr D Godwin Solicitor for the Applicant: Teleo Immigration Lawyers Counsel for the Respondents: Mr M Cleary Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 1901 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABDUL HANAN QAZIZADA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
19 MARCH 2024
THE COURT ORDERS THAT:
1.A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 17 November 2022 into this Court for the purpose of quashing it.
2.A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to re-determine, according to law, the application for review before it.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
Before me is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 17 November 2022 (Court Book (CB) 687), which affirmed an earlier decision of a delegate of the first respondent (delegate) to refuse to grant the primary visa applicant (Ms Fazli) an Other Family (Migrant) (Class BO) Carer (Subclass 116) visa (visa) under s 65 of the Migration Act1958 (Cth) (Act).
Ms Fazli is a citizen of, and presently resides in, Afghanistan. On 14 February 2016, Ms Fazli applied for the visa on the basis of her claim to be the carer of the review applicant
(Mr Qazizada) (CB 1 to 123). Ms Fazli’s husband and four children were included in the application as dependent visa applicants. The review applicant in these proceedings, Mr Qazizada, is the sponsor of Ms Fazli. Ms Fazli claims to be the sister of Mr Qazizada’s wife.
BACKGROUND
The following background and summary of the Tribunal’s decision is derived from the respective submissions of the parties.
At the time of the visa application, Ms Fazli was required to meet cl 116.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) which relevantly required that she be a “carer of an Australian relative”.
The term “carer” is defined by reg 1.15AA which relevantly provides as follows:
Carer
(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 (within the meaning of subsection 23(1) of the Social Security Act 1991 ), 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
…
(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
…
(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.
Clause 116.221 of the Regulations also required that, at the time of decision, Ms Fazli be the carer of the Australian relative referred to in cl 116.211.
On 17 December 2019, a delegate refused to grant Ms Fazli the visa (CB 481).
On 14 January 2020, Mr Qazizada applied to the Tribunal to review the delegate’s decision (CB 498).
At the Tribunal hearing on 5 May 2022 (first hearing), the Tribunal took evidence from Mr Qazizada, his wife, and Ms Fazli on the issue of whether the latter could meet cl 116.211 on the basis of her claim to be Mr Qazizada’s carer (CB 680 to 681 at [13]).
On 24 May 2022, Ms Fazli’s representative provided post-hearing submissions (CB 620).
On 11 July 2022, the Tribunal wrote to Mr Qazizada informing him that:
The Member has decided she may infer that at the time the visa application was made [Ms Fazli] claimed to be a carer of her sister, Nazifa Nazifa.
However, the Member is not satisfied on the evidence currently before her that [Ms Fazli] and Ms Nazifa are sisters.
(CB 631).
On 20 July 2022, Mr Qazizada’s representative responded to the Tribunal (CB 633 to 634).
On 8 August 2022, the Tribunal invited Mr Qazizada (via his authorised recipient) to provide additional information (CB 638 to 640) being answers to a list of 11 detailed questions. Mr Qazizada’s representative responded to the Tribunal on 22 August 2022 (CB 641 to 643).
On 6 October 2022, the Tribunal invited Mr Qazizada (via his authorised recipient) to a further hearing scheduled for 25 October 2022[1] (second hearing) (CB 644), which he duly attended together with his wife and his representative. Ms Fazli was also present at the hearing (online).
[1] To be held using Microsoft Teams
At the second hearing, the Tribunal asked Mr Qazizada's wife why she had not disclosed that she had a half-brother (Mr Wardak) to which she responded that Mr Wardak was not a biological relative, because her father was not Mr Wardak’s biological father. Rather, her father’s second wife was Mr Wardak’s mother, Mr Wardak being a child from that woman’s previous marriage (CB 682 at [19]). Accordingly, Mr Wardak was said to be her step-brother.
On 17 November 2022, the Tribunal affirmed the delegate’s decision (CB 678).
The Tribunal’s decision
Mr Qazizada has a number of medical conditions which were summarised by the Tribunal as follows (CB 684 at [27]):
Specifically, the certificate states that the review applicant has four medical conditions: severe depression, lower back injury, right wrist fusion and right foot fusion. The certificate states that the review applicant’s medical conditions have caused functional impairment to his mental health, upper limb function, lower limbs, spine, and continence. It states that he requires assistance with mobility, showering, toileting, dressing and grooming, eating and feeding, supervision of his medication, constant supervision for his personal safety, and transportation. Overall, he is fully dependent.
In its decision, the Tribunal identified the three issues in the review as being whether:
(a)at the time of the application, Ms Fazli claimed to be a carer of a person who is an Australian relative;
(b)the assistance needed by the Australian relative cannot reasonably be provided by any other relative of the Australian relative who is an Australian citizen; and
(c)the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.
While Ms Fazli sought by her application to be apply as the carer of Mr Qazizada, the Tribunal inferred from the material provided in connection with the application that, in actuality, she claimed to be the carer of Mr Qazizada’s wife at the time of application (CB 681 at [15]). That was because it was to the wife (who was allegedly her sister) whom she would provide support, who in turn would care for Mr Qazizada. The Tribunal accepted that a sister was a “relative” within the meaning of reg 1.03 of the Regulations, and that Mr Qazizada’s wife was an Australian citizen at the time the visa application was lodged (CB 681 at [16]).
However, the Tribunal had doubts about whether Ms Fazli and Mr Qazizada’s wife were in fact sisters, due to inconsistent information about Ms Fazli’s siblings and mother (CB 681 at [16]). In particular, the Tribunal was concerned that:
(a)in various documents provided with the visa application, Ms Fazli said she had not been known by any other name, that her father’s name was Abdul Sami, her mother’s name was Gulandam Abdul and that both her parents were deceased (CB 682 at [17]);
(b)material the subject of a non-disclosure certificate issued pursuant to s 376 of the Act (Certificate) indicated that Ms Fazli had previously applied for a Last Remaining Relative (LRR) visa in 2011 using a different name (“Samira Fazli Wardak”) and that she was sponsored in that application by her brother named Wahid Rahman Wardak (CB 682 at [17]);
(c)when invited to comment on the information covered by the Certificate, Mr Qazizada claimed that Ms Fazli had been sponsored for that LRR visa by her father’s second wife’s son, “Waheed Wardak”. Waheed Wardak was said to have completed all the necessary forms himself and asked Ms Fazli to simply sign them without her knowing what name Waheed Wardak would use to make the application on her behalf (CB 682 [18]);
(d)at the second hearing, Mr Qazizada’s wife gave evidence that her father was not Waheed Wardak’s father, but that he was the son of her father’s second wife from a previous marriage (CB 682 to 683 at [19]);
(e)the responses given by Mr Qazizada and his wife were not consistent with other information in Ms Fazli’s LRR visa application file, which indicated that Ms Fazli either knowingly applied for the LRR visa using the name “Samira Fazli Wardak”, or was aware an application had been made on her behalf using that name because she identified herself using that name when a Department officer telephoned her about the application (CB 683 at [20]);
(f)a taskera (Afghan identity document) had been provided to the Department in connection with the LRR visa application “presumably in the name Samira Fazli Wardak” (CB 683 at [20]); and
(g)information in the Department’s file relating to the LRR visa application indicated that Mr Qazizada wife, Ms Fazli and Waheed Wardak had the same mother, whose name was Mastura, and DNA testing indicated it was likely that Ms Fazli and Waheed Wardak were half-siblings (CB 683 at [20]).
On the evidence before it, the Tribunal was unable to confidently find that Ms Fazli and Mr Qazizada’s wife were siblings. The Tribunal recorded having decided not to request that they undergo having DNA testing because it was not satisfied the results would be reliable and because, even if it could be satisfied they were sisters, it had concluded that Ms Fazli was not a carer within the meaning of the Regulations (CB 683 at [21]).
The Tribunal accepted that:
(a)even if Ms Fazli and Mr Qazizada’s wife were siblings, it was the wife who would be the “resident” for the purpose of reg 1.15AA (CB 683 at [22]);
(b)Mr Qazizada and his wife were spouses and that the CVAC met the relevant requirements (CB 684 to 685 at [26] to [30]); and
(c)Mr Qazizada’s impairment rating of 45 exceeded the rating specified in the relevant legislative instrument (IMMI 14/085) for the purpose of reg 1.15AA(1)(c) (CB 685 at [31] to [32]).
In relation to the resident’s need for assistance, the Tribunal correctly identified that in circumstances where the resident was not the person to whom the CVAC related,
reg 1.15AA(1)(d) required that the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph 1.15AA(1)(b)(iv) (CB 685 at [33]).
The Tribunal was satisfied on the evidence before it that it was Mr Qazizada’s wife who provided him with the direct assistance mentioned in subparagraph 1.15AA(1)(b)(iv) (CB 685 at [34]) and that the applicant would continue to require assistance attending to the practical aspects of daily life “into the future” ([35]). Accordingly, the Tribunal was satisfied that Mr Qazizada’s wife had a long-term need for assistance in providing direct assistance to him in turn, and that if she and Mr Qazizada’s wife were sisters, the requirements of reg 1.15AA(1)(d) would be met (CB 686 at [36]).
However, the Tribunal was not satisfied that the direct assistance Mr Qazizada required could not reasonably be obtained from welfare, hospital or nursing or community services in Australia[2] because:
[2] CB 685 at [54]
(a)in response to a question in the Form 47OF (which asked whether any assistance had been sought from any Australian welfare organisation, doctor or health professional, hospital, nursing home or other community organisation to assist Mr Qazizada), Ms Fazli named only one organisation: the Afghan Community Support Association (ACSA) (CB 688 at [38]);
(b)a letter from ACSA dated 27 September 2019 which was provided to the Department did not indicate what services ACSA provided, what help Mr Qazizada and his wife had sought, nor why ACSA was unable to help Mr Qazizada’s wife (CB 686 at [40]);
(c)a letter from the National Disability Insurance Scheme (NDIS) dated 17 October 2019 indicated Mr Qazizada had asked about NDIS assistance (CB 686 at [41]) but when he was asked whether he could produce a letter from the NDIS outlining what assistance it could/could not provide him, Mr Qazizada said that he was sent a form to complete but when he heard (from a telephone conversation) what they could offer, he decided there was no need to complete the form (CB 688 at [49]);
(d)the Tribunal did not accept that a single conversation requesting 24-hour care from one carer with the same cultural background constituted a meaningful attempt to obtain services from the NDIS, nor an indication that the assistance Mr Qazizada required could not reasonably be obtained from NDIS (CB 688 at [49]);
(e)although Mr Qazizada had provided copies of marketing materials from various aged care facilities and an uncompleted Resident Care Enquiry form and Residential Care agreement from the Blacktown Hardi Aged Care facility, there was nothing to indicate that assistance of the kind required by him was sought from any of the aged care services and, in any event because Mr Qazizada was 41 years old, evidence that they were unable to provide assistance would have been irrelevant in any case (CB 686 to 687 at [42]);
(f)a further letter of support from ACSA dated 29 March 2022 (to the effect that Mr Qazizada had participated in various gatherings and events held by the organisation) suggested that, even if the organisation were not able to provide a carer, Mr Qazizada was able to obtain assistance for his mental health because his treating psychologist had encouraged him to attend cultural and ethnic gatherings to assist in combatting social isolation (CB 687 at [43]);
(g)a letter of support from a caseworker at SydWest Multicultural Service dated 8 March 2022 was considered to not be evidence that Mr Qazizada/his wife were unable obtain the assistance they needed from other services. That was because it was based on information self-reported by Mr Qazizada to the caseworker, and gave no indication that the caseworker (nor anyone else at SydWest Multicultural Service) had attempted to assist Mr Qazizada or his wife in obtaining the assistance they required (CB 687 at [44]);
(h)a letter of support from a Pastor from a particular church which stated that the church could extend its “faithful service” to Mr Qazizada and his family and was privileged to give them its “full support”, did not make apparent what assistance, if any, could be obtained from the church (CB 687 at [45]);
(i)although the Tribunal accepted that 24-hour nursing care was not an option that Mr Qazizada and his wife could afford, there was no indication that they had enquired about the cost of any services other than 24-hour nursing care (CB 687 at [46]);
(j)in the absence of specific details about services he had contacted for assistance other than the private nursing provider, the ACSA and nursing homes, the Tribunal was not satisfied that he had contacted other welfare, hospital, nursing or community services regarding direct assistance that could be obtained to meet his need (CB 687 at [47]) or that he had made meaningful enquiries with other services to ascertain what assistance could be provided (CB 688 at [50]);
(k)while accepting Mr Qazizada’s wife was no longer able to provide all the assistance he needed, based on Mr Qazizada’s own evidence, the Tribunal found that his wife could continue to provide some direct assistance to him (CB 688 at [48]);
(l)in relation to Mr Qazizada’s claim that he had used a service to transport him to appointments which had once left him stranded when an appointment was delayed, the Tribunal did not accept that “one instance of inadequate service that occurred years ago” indicated that the assistance required could not be obtained from relevant services in Australia (CB 688 at [51]);
(m)given that Mr Qazizada had been seeing a psychologist for many years and the letters of support from the Afghan Community Support Association and the Pastor indicated that he was willing and able to access emotional support, the Tribunal did not accept that he required one carer to assist him with his emotional and mental needs along with his physical needs or that such assistance could not reasonably be obtained from other relevant services in Australia (CB 688 at [52]);
(n)although Mr Qazizada had claimed that he required a carer who was familiar with his culture and customs and with whom he could communicate in his first language, no documentary evidence had been presented to indicate that an attempt had been made to obtain culturally and linguistically appropriate services from any service other than the ACSA (CB 688 to 689 at [53]); and
(o)relying on Mr Qazizada’s evidence that he could understand English and communicate in simple terms and that his wife spoke English well, the Tribunal was not satisfied that lack of English language skills was a barrier to Mr Qazizada accessing the assistance he needed or to his wife assisting him to obtain those services (CB 688 to 689 at [53]).
The Tribunal accepted that Mr Qazizada had made some enquiries with service providers about obtaining a 24-hour carer but was not satisfied that “the relevant enquiries have been made properly” to ascertain what other assistance could be obtained from welfare, hospital or nursing or community services to assist the applicant’s wife in providing for Mr Qazizada’s need for direct assistance, in particular whether different forms of assistance could be provided by different services so that collectively Mr Qazizada’s needs could be met (CB 689 at [54]).
Accordingly, the Tribunal concluded the requirements of reg 1.15AA(1)(e) were not met (CB 689 at [54]) and therefore, Ms Fazli was not a carer of the Australian relative and did not satisfy cl 116.221 ([55]).
APPLICATION TO THIS COURT
By an application to show cause filed with the Court on 16 December 2022, Mr Qazizada seeks review of the Tribunal’s decision and raises the following grounds of review (omitting particulars):
1. The Tribunal failed to comply with s 359A of the Migration Act 1958 in relation to [certain] information
2. The Tribunal decision is affected by jurisdictional error as the Tribunal did not comply with the requirement in Regulation 1.15AA(3) that it take as correct the opinion in the certificate issued by Bupa as to the matters in Regulation 1.15AA(1 )(b).
3. The Tribunal decision failed to complete the review as it did not intellectually engage with the case of the sponsor that his mental health condition was such that he required constant supervision and monitoring due to his propensity to self harm.
The proceedings were initially placed in the central migration docket. On 2 March 2023, the proceedings were docketed to me. No amended application or further Affidavit evidence was filed for the applicant and submissions were filed by both parties within times ordered by the Court. Each of the parties was represented by Counsel at hearing before me. Supplementary submissions were also ultimately required in the circumstances detailed at [49] to [51] below. I have been assisted by all the submissions made for the parties.
At hearing, the Court Book was tendered for the first respondent and marked Exhibit “1R”. For the first respondent was read, without objection, the Affidavit of Sophie Caroline Roberts made on 3 April 2023 which annexed redacted versions of documents the subject of the Certificate.
Ground 1
The first ground alleges that the Tribunal failed to comply with s 359A of the Act in relation to the following information the subject of the s 376 Certificate, which related to the primary visa applicant’s LRR visa application.
As is set out at [17] above, the Tribunal identified three issues for resolution in the review. As the applicant correctly observes, in relation to the first of the issues (whether at the time of application Ms Fazli claimed to be a carer of a person who is an Australian relative), the Tribunal had two concerns. The first was that Ms Fazli and Mr Qazizada were brother and sister-in-law (respectively), because that relationship would not qualify as a “relative” within the meaning of the statute. That concern was resolved in Mr Qazizada’s favour because the Tribunal was prepared to accept that the assistance which was to be provided would be to his wife, who claimed Ms Fazli was her sister.
The second concern was whether or not Ms Fazli was in fact the sister of Mr Qazizada’s wife. It was in this context that material the subject of the Certificate arose.
Section 376 of the Act provides as follows:
376 Tribunal’s discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a) the Minister:
(i) has certified, in writing, that the disclosure of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; and
(ii) has not included a statement in the certificate that the document or information must only be disclosed to the Tribunal; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence and section 375A does not apply to the document or information.
(2) Where, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) shall notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) Where the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary pursuant to subsection (2), disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the Tribunal.
In accordance with the discretion contained in s 376, the Tribunal was permitted to, and did, disclose the existence of the Certificate and invited the applicant to comment on its validity. The Tribunal found that the Certificate was valid and said the following at [10] (CB 680) (omitting footnotes) (error in original):
The Department files contain a non-disclosure certificate issued under s 376 of the Act on 17 January 2020 by a delegate of the Minister of Home Affairs.2 The certificate states that disclosure of material in certain folios of one of the files would be contrary to the public interest because it would ‘disclose lawful methods used for preventing, detecting, and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.’ Section 376 permits the Tribunal to disclose material subject to such a certificate to the applicant or another person if it thinks it is appropriate. The material to which this certificate relates is relevant to the review because it relates to the two of the issues in the review. Hence, the Tribunal invited the review applicant to comment upon the validity of the certificate.3 The representative responded that it was not possible to respond to the question of the validity of the certificate without details of the information to which the certificate related. The Tribunal is satisfied that the certificate is valid and has concluded that it is appropriate to disclose information to which the certificate relates as it is relevant to the issues in the review. The relevant information is referred to in the Tribunal’s reasoning below. The Tribunal has not however invited the review applicant to comment on or respond to the information because it was not the reason or part of the reason for affirming the decisions under review.
The applicant submitted that the final sentence of [10] of the Tribunal’s reasons is a reference to the obligation of the Tribunal required by s 359A of the Act, which relevantly provides:
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review;
In essence, the Tribunal reasoned that because it was proceeding to affirm the decision of the delegate on the basis of the third of the issues it had identified (see [18(c)] above), it therefore did not have to invite comment in respect of information concerning the issue at [18(a)].
The applicant says that the following information ought to have been put to Mr Qazizada for comment:[3]
a. Hanifa Abdul Fazli (the visa applicant) either knowingly applied for a LRR visa using the name Samira Fazli Wardak or was aware that the visa application had been made on her behalf in that name because she identified herself using that name when an officer telephoned her about the application (with the assistance if a Dari interpreter).
b. A Taskera (Afghan ID document) had been provided for the visa applicant in connection with the LRR visa application – presumably in the name of Samira Fazli Wardak.
c. It was claimed in relation to the Last Remaining Relative visa application, that the visa applicant, Mr Wardak and Mr Qazizada’s wife had the same mother and that their mother’s name was Mastura and she was living in Australia.
d. The visa applicant and Mr Wardak underwent DNA testing for the purpose of the LRR visa application and the DNA results indicated that it was likely that they were half-siblings.
[3] Particulars to ground 1 of the application filed 17 November 2022
The applicant contends that by ultimately finding that it was the third of the issues upon which the decision would turn, and therefore that the above information did not need to be put to Mr Qazizada for comment, the Tribunal misapplied s 359A of the Act. The applicant says the information at [38] above ought to have been put for comment because, at some point, the Tribunal considered the information would be the reason, or a part of the reason, for affirming the decision under review.
The first respondent says that the Tribunal expressly recorded that it had not invited the applicant to comment on or respond to the information because it was not the reason or part of the reason for affirming the decision under review.
The first respondent says the applicant has not identified what information covered by the Certificate the Tribunal was required to put to the applicant under s 359A and that it was not required to invite Mr Qazizada to comment on (or respond to) any information covered by the Certificate because its findings at [10] indicated “that it regarded it as having no possible significance in circumstances where another criterion was not met”, citing Minister for Immigration and Citizenship v SZLFX (2009) 258 ALR 448 at [23] to [25] per French CJ, Heydon, Crennan, Kiefel (as her Honour then was) and Bell JJ.
Consideration
In the present case, I accept the applicant’s submissions that the Tribunal erred in its treatment of the information the subject of the Certificate. That material did engage the Tribunal’s obligations under s 359A of the Act.
The applicant relies on the decision of DYI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 612 (DYI16) per Wheelahan J, in which his Honour was considering the application of the relevantly identical s 424A of the Act. At [66] to [67] of DYI16, his Honour relevantly observed the following:
[66] In SZBYR, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ stated at [15] that s 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review: see also, Minister for Immigration & Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [10] (Bell, Gageler and Keane JJ). Rather, the Tribunal’s obligation is limited to the written provision of “particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” (emphasis added). The statutory condition in s 424A(1) directs attention to the criteria for making the decision that are found elsewhere in the Act: SZBYR at [17]. The use of the conditional tense in s 424A(1)(a) (would be) rather than the indicative strongly suggests that the operation of the provision is to be determined in advance — and independently — of the Tribunal’s particular reasoning on the facts of the case: SZBYR at [17]; Plaintiff M174/2016 at [9] (Gageler, Keane and Nettle JJ). The information in question “should in its terms contain a ‘rejection, denial or undermining’ of the review applicant’s claim”: Minister for Immigration & Citizenship v SZLFX[2009] HCA 31; 238 CLR 507 at [22] (French CJ, Heydon, Crennan, Kiefel and Bell JJ), citing SZBYR at [17]. The information must in its terms be of such significance as to lead the Tribunal to consider in advance of reasoning on the facts of the case that the information of itself “would”, as distinct from “could”, or “might”, be the reason or part of the reason for affirming the decision under review: SZLFX at [25]; Plaintiff M174/2016 at [9].
[67] In SAAP, it was held that compliance by the Tribunal with s 424A(1) is a condition of the valid performance of the duty to review, with the consequence that non-compliance renders a decision to affirm the decision under review invalid in the sense that the decision is ineffective in law to achieve that result: see SAAP at [77] (McHugh J), [173] (Kirby J), [206]–[208] (Hayne J). These passages were cited in Plaintiff M174/2016 at [11], which in turn was cited by Gordon J sitting in the court’s original jurisdiction in Plaintiff M7/2021 v Minister for Home Affairs[2021] HCA 14 at [49] . The statements in SAAP address the question of construction that arises as to whether non-compliance with s 424A(1) leads to invalidity without regard to the additional consideration of materiality, or whether non-compliance with s 424A(1) is necessarily material: see, MZAPC v Minister for Immigration & Border Protection[2021] HCA 17 at [30] –[33] (Kiefel CJ, Gageler, Keane and Gleeson JJ); and see also, Project Blue Sky Inc v Australian Broadcasting Authority[1998] HCA 28; 194 CLR 355 at [92] (McHugh, Gummow, Kirby and Hayne JJ). It follows from what was said in SAAP by McHugh J at [77], and by Hayne J at [208], with Kirby J agreeing at [173], that non-compliance with s 424A(1) is necessarily material, because the provision prescribes the content of an imperative obligation to accord procedural fairness, compliance with which is a necessary condition of the validity of the review.
The scope of material which is captured by s 359A of the Act to be put for comment (beyond material which is excluded by the section itself (see s 359A(4))) is not boundless. The language of the statute limits the information in respect of which comment must be sought to that which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review: see MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483 at [29] per Heerey J.
As the High Court explained in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (SZBYR) at [17]:
…The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case.
In the present case, the Tribunal identified three issues in advance upon which its decision would turn. That, in reaching its ultimate decision, the Tribunal was not satisfied that issue three of three was made out, does not absolve it from earlier compliance with its s 359A(1) obligation to invite comment on information which would have informed one of the other potential bases of the decision.
I find that s 359A was engaged and that the failure of the Tribunal to invite comment on the material the subject of the Certificate was a breach of that section and constitutes an error on the part of the Tribunal.
Materiality and discretion
As the applicant correctly submits, the question of whether an error is material is different to that of whether relief should be refused on discretionary grounds for lack of utility. It can be accepted that, in applying the requisite counterfactual analysis in assessing materiality, the Court looks at whether by making the error the decision-maker deprived the applicant of the realistic possibility of a successful outcome: see Nathanson v Minister for Home Affairs (2022) 276 CLR 80 at [32] per Kiefel CJ, Keane and Gleeson JJ.
By contrast, the Court’s discretion considers the utility of relief being granted at the time the Court makes its decision on the review and is future-looking in the sense of whether, if relief were to be granted, a fresh decision could possibly be made in favour the applicant. That question is likely to turn on more binary considerations. For example, where a criterion requires an applicant to be onshore for its grant, but the applicant departed following the Tribunal’s decision, or where a criterion requires that the applicant be in a relationship, yet that relationship has since ceased.
On 30 June 2023, Justice Wigney of the Federal Court of Australia delivered reasons for judgment in the matter of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Antoon (2023) 298 FCR 400 (Antoon). In the course of preparing these reasons for judgment it became apparent to the Court that the decision in Antoon may bear on this decision, and the parties ought be heard on its effect, if any.
On 12 October 2023, my Chambers wrote to the representatives to say that given the potential relevance of Antoon to ground 1 in the present case, the parties were invited to provide any further position they wished in respect of materiality in relation to that ground, preferably by a joint submission, but if that was unfeasible, to propose a timetable and regime for the exchange of supplementary submissions. Ultimately, the latter course was agreed upon and I made orders in Chambers to facilitate an additional round of written submissions. I have been assisted by those supplementary submissions by the parties.
The parties mutually agreed to confine their supplementary submissions on the effect of Antoon to the question of the Court’s discretion to withhold constitutional writ relief only, the question of materiality having been addressed in the submissions in chief filed earlier in the proceedings upon which, it is inferred, both parties continued to rely.[4]
[4] First respondent’s supplementary written submissions filed 15 November 2023 at [4] and footnote 1 thereto
In Antoon, Wigney J found himself bound by the High Court’s decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 (SAAP) in reaching the conclusion (at [92]) that (emphasis added):
There is undoubtedly a degree of tension between the decision of the majority justices in SAAP and the reasoning of the majority justices in Hossain, SZMTA and MZAPC. It is difficult to see any sound basis for concluding that the implication of the threshold of materiality would not apply in the case of breaches of ss 359A and 424A of the Act. Nevertheless, SAAP has not been overruled, expressly or impliedly, and remains authority for the proposition that a failure by the Tribunal to comply with either ss 359A or 424A of the Act constitutes a jurisdictional error that results in the invalidity of the Tribunal’s decision. Any tension or inconsistency between that proposition and the reasoning in Hossain, SZMTA and MZAPC must be resolved by the High Court, not a single judge of this Court.
The first respondent makes a formal submission to this Court to preserve his position that SAAP is wrongly decided but that, given I too am bound by the decision in SAAP, did not seek to otherwise address that contention in this proceeding.
In addition to their mutual position to address the question of discretionary withholding of relief, the parties were also generally agreed as to the principles which attend it, bifurcating only as to the application of them to the instant case.
In similar circumstances, Judge Kendall recently considered the interaction between Antoon, SAAP and DYI16 in Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 18 at [89] to [92] and, having set out [92] to [5] of Antoon, said the following (error in original):
93. This Court is bound by these comments.
94. In this matter, as was the case in Antoon, this Court is bound (by SAAP ) to conclude that a breach of s 359A amounted to jurisdictional error on the part of the Tribunal such that the Tribunal’s decision was invalid.
95. This remains the case despite the fact that the error on the part of the Tribunal could not have made a difference to the outcome of the review: Antoon at [95].
The discretion of the Court in issuing Constitutional writs is not in doubt. As the High Court observed in SZBYR (supra) at [28] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [56] per Gaudron and Gummow JJ (footnotes omitted):
[28] This Court has previously emphasised that the grant of the constitutional writs is a matter of discretion, and the same principles apply to the grant of relief by the Federal Magistrates Court and the Federal Court pursuant to s 39B of the Judiciary Act 1903 (Cth). In Aala, Gaudron and Gummow JJ noted that:
[56] Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said:
“For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.”
The applicant contends that remittal would not be pointless because a different Tribunal may well take a different view on the evaluative question of whether the assistance could not have been reasonably obtained from welfare, hospital, nursing or community services in Australia. Further additional evidence and arguments concerning this question could be provided to the Tribunal. As such, the applicant says this is not a case where there is nothing he could do to meet the statutory requirement, such that the Tribunal would be bound to refuse the application.
The applicant contends that in order to provide a meaningful safeguard, s 359A must enable the person responding to an invitation to comment to address the issue identified, before the Tribunal has made up its mind, hence the use of the future conditional expression “would be” in s 359A.
The applicant says that despite a submission by the first respondent to the effect that no useful result can ensue by remitting an application for review to the Tribunal if the contravention was “technical only” and has not disadvantaged a review applicant (citing VCAT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 141 at [41], [45], [52] per Gray ACJ, North and Giles JJ), that the non-compliance by the Tribunal in this case is not a mere technical breach.
The first respondent says that the Court ought exercise its discretion to refuse relief because compliance with the relevant obligation could not have made any difference for the following reasons.
The first respondent says that because the issue upon which the Tribunal decided the review was whether the assistance could not have been reasonably obtained from welfare, hospital, nursing or community service in Australia: see reg 1.15AA(1)(e)(ii), the material the subject of the Certificate was not the reason or part of the reason why the Tribunal decided the review.
The first respondent also says that the Tribunal made an independent factual finding at [54] (CB 689) that it was not satisfied that the assistance could not reasonably be obtained from welfare, hospital or nursing or community services in Australia and that [10] (CB 680) of the Tribunal’s decision makes clear that the material the subject of the Certificate was not the reason or part of the reason for the decision, remittal would be pointless.
By reference to Antoon, the question for the Court regarding the exercise of discretion to refuse relief under s 476(1) of the Migration Act is whether I can be positively satisfied that compliance with the relevant obligation, “could not have made any difference”. In the present case, I am not so satisfied.
For the same reasons discussed at [44] above, that the Tribunal subjectively assessed the inquiries made to determine the availability of assistance from welfare, hospital and community service as not being “relevant and adequate”[5] does not mean that it was excused from compliance with s 359A in respect of the information the subject of the Certificate.
[5] CB 689 at [54]
It is appropriate that I take the same approach as in Singh (supra) [89] to [92] (see [55] above), namely that this Court is bound to conclude that a breach of s 359A amounted to jurisdictional error on the part of the Tribunal such that the Tribunal’s decision was invalid. Even if I were not so bound, I would reject the first respondent’s (circular) submission[6] that:
In order to succeed, the applicant would need to establish that compliance with the obligation in s 359A could realistically have resulted in a different decision. In this case, if there was a breach, it was plainly not material as the Tribunal affirmed the decision on the basis that the primary visa applicant was not a “carer” as defined in reg 1.15AA.
[6] First respondent’s written submissions filed 19 April 2023 at [24]
I agree with the applicant that the obligation to provide an opportunity for a person to respond to adverse material being framed in the future conditional tense means that its operation does not depend upon the adverse material actually being relied upon. As such, it cannot be the case that by failing to fulfil its obligation to invite comment which might have yielded additional information from the applicant in respect of one potential basis, by finding on a separate basis, can be used to submit that there remains a separate and independent basis for the decision, such that the error could not be material.
The error of the Tribunal alleged by ground 1 is jurisdictional, and I also find no basis upon which to withhold relief in the exercise of my discretion.
Ground 2
By the second ground, the applicant alleges that the Tribunal failed to comply with the requirement of reg 1.15AA(3) that it take, as correct, the opinion in the Certificate issued by Bupa as to the matters in reg 1.15AA(1)(b). In particular, the applicant contends the Tribunal “failed to accept that the assistance required was constant supervision and monitoring”.
As discussed at the outset of this judgment, cl 116.221 of the Regulations required that, at the time of decision, Ms Fazli was a carer of the Australian relative (or “resident”). The Tribunal was required to consider whether Ms Fazli was a carer as defined in reg 1.15AA, the relevant parts of which are set out at [5] above.
The certificate issued by Bupa (who was Mr Qazizada’s Health Service Provider) described the required assistance in the following terms (CB 95) (emphasis added):
Based on today’s assessment, there appears to be a high risk of self neglect and harm to self in the absence of constant supervision and monitoring. For this reason, I feel Mr Qazizada satisfies the requirements of a carer visa.
The applicant says it is plain that “constant supervision and monitoring” means that the assistance required by Mr Qazizada was 24-hour care and that, by the operation of reg 1.15AA(3), the Tribunal was required to take the opinion about 24-hour care to be correct.
For the applicant it was submitted that the Tribunal’s summary of the Bupa certificate (see [16] above), demonstrates that the Tribunal failed to fully appreciate that the primary need for a carer for Mr Qazizada arose from a mental health condition. It was submitted for Mr Qazizada that the Tribunal’s statements at [47], [49], [52] and [54] taken together, indicate that the Tribunal did not accept as correct, the opinion articulated in the CVAC, and therefore, it failed to comply with reg 1.15AA(3).
The first respondent submitted that there is nothing in the Tribunal’s reasons to suggest that it disagreed with the opinion stated in the CVAC that the applicant required “constant supervision”, and that the applicant’s allegation that the Tribunal failed to have regard to the opinion lacks a substantive basis.
Consideration
To assess whether the Tribunal erred in the manner contended for by ground 2, it is necessary to have regard to the content of the CVAC prior to analysing the manner in which the Tribunal dealt with its own assessment of whether and how, Mr Qazizada’s care needs might be met. The “Summary comments” included in the CVAC (CB 95) concluded with:
Based on today’s assessment, there appears to be a high risk of self neglect and harm to self in the absence of consisting supervision and monitoring.
The Tribunal considered the CVAC (in terms of its compliance with reg 1.15AA(1)(b)) at [24] to [28] of its reasons for decision (CB 684). In doing so the Tribunal concluded:
The certificate states that the review applicant’s medical conditions have caused functional impairment to his mental health, upper limb function, lower limbs, spine, and continence. It states that he requires assistance with mobility, showering, toileting, dressing and grooming, eating and feeding, supervision of his medication, constant supervision for his personal safety, and transportation. Overall, he is fully dependent.
For the applicant, emphasis was placed on later discussion by the Tribunal about the care options which had been explored for Mr Qazizada, which findings are said to demonstrate that the Tribunal failed to understand/accept that there was a need for constant supervision. That discussion is summarised as follows:
(a)that an email provided to the Tribunal from the General Manager of the Blacktown Terrace Care Community on 17 March 2022 in response to his inquiry about “24-hour private nursing services” stated that the cost would be about $36,000 a month. After referring to the email the Tribunal said at [47] (emphasis added):
Given the review applicant and his wife receive income support from the Australia government, the Tribunal accepts that private 24-hour nursing care is not an option to meet the review applicant’s need for assistance. However, there is no indication that the review applicant inquired about the cost of any services other than 24-hour nursing care.
(b)in discussing the engagement by/for Mr Qazizada with NDIS, the Tribunal said the following at [49] (CB 687):
The Tribunal does not regard a conversation requesting 24-hour care from one carer with the same cultural background to be a meaningful attempt to obtain services from NDIS or an indication that assistance the review applicant requires cannot reasonably be obtained from NDIS.
(c)the Tribunal considered evidence from ACSA and the letter from Mr Qazizada’s Pastor which indicating a willingness on Mr Qazizada’s part to access support for his emotional and mental needs from different sources. As such the Tribunal went on to state at [52] (CB 688) that (emphasis added):
The Tribunal does not accept that the review applicant needs one carer to assist him with his emotional and mental needs along with his physical needs or that such assistance cannot reasonably be obtained from other relevant services in Australia.
(d)the conclusion expressed at [54] (CB 689) which included:
In conclusion, the Tribunal accepts that the review applicant has made some inquiries with service providers about obtaining a 24-hour carer. It is not however satisfied that relevant or adequate inquiries have been made to properly ascertain what other assistance can be obtained from welfare, hospital or nursing or community services to assist the review applicant’s wife in providing the review applicant’s need for direct assistance - in particular whether different forms of assistance can be obtained from different service providers so that collectively the review applicant’s need could be met.
I am not satisfied that the Tribunal failed to accept the CVAC conclusion regarding constant supervision.
A plain and contextual reading of the CVAC comments is that he required constant supervision and monitoring due to his propensity for self-harm. It was not suggested by the CVAC that such supervision:
(a)needed to be provided by one carer or a limited number of carers;
(b)was required to be provided by a nurse or any person/s with specific skillsets; and/or
(c)was required to be provided by a person with the same cultural background or any other characteristics in common with Mr Qazizada’s.
The Tribunal’s summary of CVAC’s meaning is, in my view, accurate. The Tribunal acknowledged that Mr Qazizada (CB 684 at [27]):
requires…constant supervision for his personal safety…Overall, he is fully dependent.
The above understanding is consistent with the CVAC and demonstrates no divergence in understanding or acceptance of the opinion that Mr Qazizada required anything other than constant supervision. The question of by whom and their qualifications was a different matter, and the Tribunal when later assessing how such a need could be met was entitled to make a distinction about the preferences which Mr Qazizada clearly had for the delivery of that care, and the base need. In doing so, I do not accept that the Tribunal was in any way denying the need itself.
Accordingly, I am not satisfied that the Tribunal erred in the manner alleged by ground 2.
Ground 3
The third ground alleges that the Tribunal failed to complete its review by failing to intellectually engage with the applicant’s case that his mental health condition was such that he required constant supervision and monitoring due to his propensity to self-harm.
The applicant’s submissions in respect of this ground build upon the submissions made in support of ground 2, however the grounds are themselves different and the fact that the Court has not found ground 2 to be established within the terms it was raised, does not automatically dispose of ground 3.
By this ground Mr Qazizada relies on a number of authorities to support the proposition that the Tribunal failed to intellectually engage with the case put by him as to the level and extent of care needed.
In Mariam v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 436 per Judge Laing (Mariam), when considering a similar (though not identical) ground of review, the Court analysed a number of decisions[7] and concluded that the Tribunal’s reasons had not turned upon whether assistance was reasonably obtainable from a particular provider or provider(s) which may have met the sponsor’s physical (but not emotional needs). Rather, they had turned on its lack of satisfaction generally that the applicant had adequately investigated suitable available service providers such that it could not be satisfied that the requirements of reg 1.15AA(1)(e) were met.
[7] see Biyiksiz v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 814 per Gray J, El-Chahini v Minister for Immigration and Border Protection (2008) 74 AAR 224 per Jagot J and Minister for Immigration and Border Protection v Nguyen (2017) 254 FCR 522 per Flick, Barker and Rangiah JJ
In the instant case, I agree with the submissions of the first respondent that the Tribunal understood and accepted the opinion in the CVAC, but was not satisfied that care options had been sufficiently investigated such that the assistance required by Mr Qazizada could not be reasonably obtained from other relevant sources.
This is not a case, such as El-Chahini v Minister for Immigration and Border Protection (2008) 74 AAR 224 per Jagot J (considered in Mariam), where the Tribunal made certain assumptions and findings about the availability and willingness of other relatives in Australia who (to its mind) could band together and thereby alleviate the need for the Carer visa to be granted to the visa applicant (see reg 1.15AA(e)(i)).
The Tribunal was not suggesting that Mr Qazizada’s care needs could, or should, be provided by his wife. Rather, it was simply not satisfied that sufficient assistance could not be obtained from third party providers of the kind set out in reg 1.15AA(1)(e)(ii) because Mr Qazizada’s enquiries of such providers had been on a very specific and limited basis which did not necessarily accord with the general need he had for constant supervision. The material before the Tribunal indicated Mr Qazizada had acknowledged that such assistance could be provided by an array of sources (see [77(c)] above). Yet, the enquiries which had been made by/for him sought a much more specific, less attainable type of care.
In all the circumstances of this case, I am satisfied that the Tribunal did engage with the case being made by Mr Qazizada. Accordingly ground 3 is not made out.
CONCLUSION
The applicant has succeeded in establishing jurisdictional error in ground 1 and the Court is satisfied that there is no basis upon which, in the exercise of its broad discretion, relief should otherwise be withheld. Accordingly, writs will issue.
I will hear the parties as to costs.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 19 March 2024
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