Karim v Minister for Home Affairs

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 This is an appeal from the Federal Circuit Court: Hussein v Minister for Home Affairs [2018] FCA 3801. That Court dismissed the appellant's application for orders quashing an earlier decision of the Administrative Appeals Tribunal ('the Tribunal') made on 27 February 2018. The Tribunal had affirmed a decision of a delegate of the Minister for Home Affairs ('the Minister') on 24 October 2016 to refuse to grant the appellant, Ms Karim, an Other Family Residence (class BU) carer (subclass 836) visa ('carer visa'). 2 Ms Karim is a Lebanese citizen. On 4 April 2011, she applied for the visa on the basis that she is a carer for the sponsor to her application. The sponsor is Ms Karim's daughter who is an Australian resident and a single mother with four young children. In Ms Karim's visa application, she cited the following as leading to her daughter's need for assistance: Depression, insomnia, anxiety, poor concentration, postnatal depression, suicidal thoughts, lower back pain. 3 There are a number of criteria prescribed by the Migration Act 1958 (Cth) ('the Act') and the Migration Regulations 1994 (Cth) ('the Regulations') which need to be satisfied before the Minister is empowered to grant an applicant a carer visa. This appeal is concerned with only one of them. It is the requirement that Ms Karim should be her daughter's carer at the time the carer visa application is determined. That the Minister (or, in this case, the Minister's delegate) needed to be satisfied of this matter flows from s 65(1)(a)(ii) of the Act which requires the Minister to be satisfied that 'the … criteria for [the carer visa] prescribed by the Act or the regulations have been satisfied', and cl 836.221 of Sch 2 to the Regulations which prescribes as a criterion to be satisfied for the grant of a carer visa that, at the time of the decision, 'the applicant is a carer of a person referred to in clause 836.212'. 4 Clause 836.212 is a criterion which needs to be satisfied at the time the application is made (not at the time when it is decided) and is that the applicant 'claims to be the carer of an Australian relative'. There is no doubt that this criterion was satisfied in the present case. Its only continuing relevance is that it provides by way of byzantine cross-reference the identity of the person of whom the carer visa applicant is to be considered as the carer for the purposes of cl 836.221. In any event, the effect of these provisions, taken together, is that at the time the Minister's delegate came to consider Ms Karim's application for a carer visa, he or she was required to be satisfied that Ms Karim was her daughter's carer. 5 The expression 'carer' is a carefully defined one in the Regulations and has been the subject of numerous decisions in this Court. The definition is contained reg 1.15AA. It stipulates a number of reasonably complex requirements all but one of which are irrelevant to the present appeal. So far as it is relevant reg 1.15AA provides as follows (with key concepts emphasised in italics): 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: … (b) according to a certificate that meets the requirements of subregulation (2): (i) a person (being the resident or a member of the family unit of the resident) has a medical condition; and (ii) the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and (iii) the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and … (c) the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and …. (2) A certificate meets the requirements of this subregulation if: (a) it is a certificate: (i) in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and (ii) signed by the medical adviser who carried it out; or (b) it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures. … 6 It is not in dispute that the relevant legislative instrument is the Migration (IMMI 17/126: Impairment Rating) Instrument 2017 (Cth) and that it requires an impairment rating of 30. Clause 5 of the instrument provides that 'for the purposes of paragraph 1.15AA(1)(c) of the Regulations the impairment rating is 30'. The effect of this is that the Minister's delegate (and, thereafter, the Tribunal on review) was required to be satisfied at the time that the decision was made that there existed a certificate in relation to Ms Karim's daughter which rated her impairment at 30. 7 Before that decision could be made it was, apparently, first necessary for Ms Karim's application to be added to a queue of such pending decisions. Applications appear only to have been added to this queue if they were found to meet 'the core criteria'. Without being definitive (because it is not presently relevant) I take this most likely to be a reference to the criteria which needed to be satisfied at the time that the application was made (i.e. the criteria set out in cll 836.211-213 of Sch 2) although I accept that this question may not perhaps be free from doubt. It does not matter because there is no doubt that the Department accepted that Ms Karim satisfied the core criteria, whatever it is that they might have been. Accordingly, her application was assessed as meeting the core criteria and placed in the queue. On 18 July 2013, the Department wrote to Ms Karim and informed her that her application would progress to final processing when a place became available in the migration program, and that she would still be required to satisfy the core criteria and any requests for further information or documents at the time that the final decision was made. 8 In the period between the application being submitted and the delegate's decision, Ms Karim appointed three different representatives for the purposes of her carer visa application. On 15 March 2011, Ms Karim appointed Ms Eleonore Nayef Francis Bashi, a registered migration agent, as her representative. On 8 May 2012, she appointed Mr Mustapha Ayad as her legal representative. On 19 June 2013, she then appointed Mr Hulio Gash, a registered migration agent. Mr Gash withdrew that appointment by email to the Department on 4 January 2016, but was reappointed on 12 January 2016. 9 Prior to Mr Gash's reappointment, the Department sent a letter to Ms Karim requesting an updated Carer Visa Assessment Certificate ('CVAC'), which was the certificate that met the requirements of reg 1.15AA(2). On 9 February 2016, after his reappointment, Mr Gash wrote to the Department providing evidence that Ms Karim had made contact with Bupa Medical Services with a view to obtaining an updated CVAC. On 12 July 2016, the Department wrote to Ms Karim requesting more information and advising that her original CVAC had expired. On 13 September 2016, the Department spoke with and emailed a person called 'Phillip' seeking a response to the letters of January and July 2016, to which there had been no answer. 10 On 16 September 2016, Mr Gash provided a CVAC dated 26 July 2016 which assessed the sponsor as having a total impairment rating of 20. Ms Karim's daughter was certified as having a medical condition that caused physical, intellectual or sensory impairment of her ability to attend to the practical aspects of life. However, the CVAC stated that she did not need direct assistance in attending to them because of the medical condition, and that she did not satisfy the requirement that any need would continue for at least two years. 11 On 19 September 2016, the Department invited Ms Karim to comment on the adverse information, being that the criteria in reg 1.15AA were not satisfied (i.e. that the 2016 CVAC did not rate the daughter's impairment at 30). On 12 October 2016, Ms Karim provided a statement outlining her daughter's health conditions, advising that her daughter was receiving ongoing treatment with a psychologist concerning the premature birth of her twins some six years prior and her having left an abusive marriage, and providing some information concerning the twins' general performance. On 18 October 2016, Mr Gash requested an extension to submit further medical reports. That extension was refused by the Department. On 24 October 2016, the Minister refused Ms Karim's application on the basis that she did not satisfy reg 1.15AA(1)(c) after the sponsor was assessed as having an impairment rating below the requisite 30. 12 I am prepared to infer that there was also before the delegate a certificate which did rate the impairment at 30. This is because Ms Karim's initial application of 4 April 2011 was accompanied by a CVAC dated 22 December 2010, in which the sponsor was assessed with an impairment rating of 30. By the time the delegate decided the application this certificate was nearly six years old. Further, Ms Karim had been asked by the delegate to provide an updated certificate and had done so. It is not surprising, in that circumstance, that the delegate did not refer to the 2010 CVAC. I mention this matter because, as will be seen, in this Court Ms Karim sought to place some fresh reliance on the 2010 CVAC. 13 On 9 November 2016, Ms Karim applied to the Tribunal for a review of the Minister's decision. At that time, Ms Karim continued to be represented by Mr Gash. On 21 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 that Ms Karim provide an updated CVAC because the earlier one had expired. On 23 November 2017, Mr Gash requested that the Tribunal hearing be postponed so as to allow Ms Karim to seek a new CVAC. The Tribunal granted a postponement and subsequently invited Ms Karim to a rescheduled hearing set for 31 January 2018. On 12 January 2018, Mr Gash provided the Tribunal with a document confirming Ms Karim's appointment for a carer visa medical assessment booked for 25 January 2018. At no time did Ms Karim (or those acting on her behalf) suggest that any use should be made of the 2010 CVAC. 14 At the hearing, the Tribunal Member raised with Ms Karim the previous requests for an updated CVAC. Ms Karim stated that her representative was at fault, that he never responded to her calls, and that her migration agent was the cause of the delay. The Tribunal Member then gave Ms Karim two weeks to provide an updated CVAC. 15 On 1 February 2018, Ms Karim provided a CVAC dated 25 January 2018 to the Tribunal. That CVAC assessed the sponsor as having an impairment rating of 10 and her assessment under the criteria otherwise remained as it was in the 2016 CVAC. On 27 February 2018, the Tribunal affirmed the Minister's decision. 16 In her subsequent judicial review proceeding before the Federal Circuit Court, Ms Karim advanced three grounds of review. The first concerned the conduct of 'the migration agent, Phillip Bachi', who was said to have misled Ms Karim and her daughter. The second was that the Tribunal failed to take evidence from the migration agent; that she was denied an opportunity to obtain a medical assessment; and that she did not accept that it was her and not the migration agent who was responsible to provide information. The third was that the Tribunal failed to afford Ms Karim natural justice and give her further time to provide an updated CVAC. The primary judge rejected each ground and dismissed the application. 17 In this Court, Ms Karim advances three grounds of appeal: 1. I wish to thank Her Honour for her patience and the way she dealt with my case in Court but still believe that Her Honour failed to make a decision about the dishonesty of the migration agent, namely Philip Bashi. 2. Her Honour also failed to act upon the carer visa certificate assessment with result "satisfied" which means that my daughter Houda is entitled to have me as her carer. 3. In the light of my submission to the Court a few days before the Court I asked that the Federal Court of Australia will be in a position to assist me and make a finding that the matter should be remitted to the Tribunal because the first Medibank Health Solutions Assessment my daughter Houda obtained 30 points which means she satisfied the requirement and the Tribunal failed to consider the contents of carer visa certificate which clearly specifies that the medical condition is permanent and I believe that the Tribunal decision denying or refusing my daughter's application is not reasonable because not only my daughter, who suffers serious medical condition, but also her children, who have serious medical conditions. 18 At the hearing, Ms Karim placed material before the Court - over objection - which tended to prove that Ms Karim's daughter was indeed presently suffering from several ailments and needed her mother to help look after her. For the sake of argument, I am prepared to assume this in her favour. 19 I propose to treat Ms Karim's appeal as disclosing the following grounds: (1) The Tribunal was wrong to conclude that it could not grant a carer visa unless there was a certificate rating her daughter's impairment at 30. In fact, it could do so where it was independently satisfied that the sponsor for a carer visa applicant needed to be cared for by the applicant. The Tribunal was not bound to apply the definition of 'carer' in reg 1.15AA in determining that issue but could approach it as an ordinary English expression. As a matter of ordinary English Ms Karim was her daughter's carer. She was therefore entitled to the carer visa. (2) The Tribunal should have acted upon the 2010 CVAC which did rate the impairment level at 30. (3) The manner in which the Tribunal had handled the matter denied Ms Karim procedural fairness because she was not given an adequate opportunity to obtain a further CVAC. (4) Dishonest conduct on the part of her migration agent meant that the function conferred on the Tribunal of conducting a review had been thwarted with the consequence that there had been no review as a matter of law. 20 As to the first ground, as a matter of ordinary language, I am disposed to see the force of the suggestion that Ms Karim was her daughter's carer. The difficulty with this ground, however, is reg 1.15AA of the Regulations which gives the word 'carer' a complex and technical meaning. It is not expressed, as definitional provisions sometimes are, to be subject to the evincing of any contrary intention. However, even if a definitional provision does not express itself to be subject to the evincing of any contrary intention, nevertheless, it will not be given effect so as to defeat a meaning required by the particular statutory context: Betella v O'Leary [2001] WASCA 266 at [13] per Burchett AUJ (Wallwork and Wheeler JJ agreeing). However, I can discern nothing in cl 836.221 which requires the conclusion that the definition in reg 1.15AA should be departed from. To the contrary, it seems to me very clear that cl 836.221 is intended to operate precisely with reg 1.15AA in mind. So it is not a plausible interpretation of cl 836.221 that 'carer' has its ordinary English meaning. I rejected a similar attempt to read the expression 'competent English' in cll 485.215 and 485.222 of Sch 2 as an ordinary English expression when it is was precisely defined in reg 1.15C: Parmar v Minister for Immigration [2011] FCA 760; 195 FCR 186 at 192 [18]. This situation is no different. 21 Consequently, the Tribunal was required to be satisfied at the time of its decision that there was a certificate which rated the sponsor's impairment at 30. The final certificate which was before the Tribunal rated the sponsor's impairment at 10. Subject to the second ground, this inevitably meant that the carer visa application had to be refused because one of the essential criteria for its grant was absent. 22 Turning then to the second ground, Ms Karim's contention is that the requirement that there be a certificate was in fact satisfied by the 2010 CVAC. I put to one side the procedural difficulty that this argument does not appear to have been advanced in the Court below or in the Tribunal. This is because I do not accept that the argument can succeed. The relevant eligibility requirement is that contained in cl 836.221. This is a criterion which must be satisfied at the time the application is decided. The criterion is: The applicant is a carer of a person referred to in clause 836.212. 23 The word 'carer' picks up the elaborate apparatus of reg 1.15AA but it is important to remain focussed on the text of the criterion. It has a temporal aspect to it that the definition of 'carer' does not. It is that at the time of the decision the applicant is a carer of the sponsor. Thus the certificate referred to in reg 1.15AA must not just be any certificate; it must be a certificate which shows the applicant to be a carer at the time of the decision. This does not mean that the certificate must bear the same date as the decision but it must be such that it can be reasonably open to infer that the degree of impairment referred to in it continues to be applicable at the time of the decision. In assessing that issue it may be appropriate to consider the actual conditions described in the CVAC. 24 In this case, the 2010 CVAC assessed the sponsor's degree of impairment at 30 in circumstances where she had postnatal depression following the premature birth of twins. Such a certificate could not reasonably say anything about the degree of impairment of the sponsor 8 years later in 2018 when the Tribunal came to consider the matter. It would not have been open to the Tribunal to rely upon the 2010 CVAC for the purposes of reg 1.15AA. In that circumstance, it did not err in failing to refer to it. Without deciding, it may also be that the requirement in subreg 1.15AA(1)(b)(iv) that the certificate say that the person will continue to have the medical condition for two years may put an absolute expiry date on the life of the certificate of two years. 25 As to the third ground, I can discern no denial of procedural fairness. As I have explained above at [12]-[14] the Tribunal granted Ms Karim a number of indulgences to obtain further certificates and these opportunities actually resulted in Ms Karim obtaining a certificate dated 25 January 2018. The difficulty for Ms Karim is not that she was denied procedural fairness by not being given an opportunity to put on an updated certificate. She was given that opportunity and took it up. The difficulty is that the certificate said that the impairment rating was 10, not 30. In that circumstance, the Federal Circuit Court was right to conclude that there had been no denial of procedural fairness. 26 As to the fourth ground, there is some lack of clarity about what the fraud of the migration agent might have been. However, as the Federal Circuit Court correctly observed at [46], whatever it was, did not prevent Ms Karim from obtaining an updated certificate. In particular, I would note it is not suggested that the certificate itself is the product of some fraudulent process. I respectfully agree with the learned primary judge (at [46]) that this has the consequence that it is not possible to conclude that the hearing before the Tribunal was, in any relevant sense, stultified by the (assumed) fraud of the migration agent: cf SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 at 205-206 [47]-[49] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. If it were shown that the migration agent had procured the certificate by fraud so that what was assessed was not the impairment rating of the daughter, then this argument might go somewhere. However, there is no such claim. 27 In those circumstances, the appeal must be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.