Firozmin v Nursing and Midwifery Board of Australia [2015] NSWCATOD 57

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Firozmin v Nursing and Midwifery Board of Australia [2015] NSWCATOD 57 Hearing dates: 13 February 2015 Decision date: 13 February 2015 Before: M Joseph, Principal Member S Hillsley, Professional Member A Bizzottao, Professional Member F Taylor, Lay Member Decision: 1. Respondent's Decision of 18 July 2014 be confirmed and appeal otherwise dismissed. 2. Applicant pay Respondent's costs Legislation Cited: Health Practitioner Regulation National Law (NSW) Category: Principal judgment Parties: Firozmin Nisha (Applicant) Nursing and Midwifery Board of Australia (Respondent) Representation: Solicitors: N Firozmin (Applicant in person) CBP Lawyers (Respondent) File Number(s): 1420289

JUDGMENT 1. The Tribunal has before it an application by Nisha Firozmin, we will call her, although she tells us that she has a number of different names although Nisha is her last name so I will call for the purposes of this application Ms Nisha as being the appellant and the respondent being the Nurses and Midwifery Board of Australia. 2. The application is against a decision to reject the granting of registration to Ms Nisha pursuant to the national law. The reasons for rejection are contained within correspondence in exhibit A and they have been revealed as being essentially two in number. One is a failure to satisfy the English language skills registration standard and the second relates to what might be generally called "character" issues although there are a number of arms to that aspect of the concern as expressed by the Board. 3. The statutory background to this application has been provided to us in submission form by Mr Stafford who appears on behalf of the Board which is very helpful and we do not intend to set them out as there seems to be no dispute as to their applicability. The decision is one that comes to this Tribunal under 175C of the National Law and that that Law provides us with both the objectives under s 3 and the guiding principles under s 3A. Relevant standards have been tendered and considered. 4. The decision to grant or not grant an application for registration is set out under s 52 which refers to the eligibility for general registration. There are two aspects of that requirement that the Board considered Ms Nisha did not satisfy namely section 52(1)(c) and section 52(1)(e). In particular the Board considered whether Ms Nisha was a suitable person as this related to her past history of both a criminal conviction and conduct to which we will further specify in due course as well as the approved registration standard for her profession as it related to the English language skill registration standard. 5. There is other relevant standards to which the Tribunal has considered and which is relevant namely the "criminal history registration standard". Overarching all of these considerations and which have been considered, is the Ethics for Nurses in Australia and the Code of Professional Conduct for Nurses in Australia. These are matters which influence the considerations including the interpretation s 52 of the Law, in the circumstances of the matter that is before us. 6. In respect of the application for registration that was provided to the Board by Ms Nisha, this was received on about December 2013. Our attention has been drawn to a number of aspects of the application which are at least deficient if not misleading: Firstly, answer to question 13 which was "Do you have any criminal history in Australia?",to which Ms Nisha answered "No". This was not the case. Secondly in section concerned with English language skills requirements namely question 25 in response to the question (have) "you have completed five years fulltime equivalent education as outlined, taught and assessed in English in one or more of the recognised countries listed". Ms Nisha indicated that she was attending an English language course at Meadowbank TAFE for the period 2008 and 2009 as a fulltime student. This was not the case. Thirdly, in answer to question 27 which asked, "Were your results in the abovementioned English language examination obtained in the past two years", Ms Nisha has crossed the box for "Yes", whereas given the date of the application in 2013,that was also not the case. She did the course at Meadowbank in 2008 and completed it in December 2008. Fourthly, the consent form Ms Nisha has signed declares that the above statements and the documents provided in support of this application are true and correct and thereunder an acknowledgement that: "I make this declaration in the knowledge that a false statement is grounds for the Board to refuse registration." Fifthly, the documents annexed included documents which are not consistent with the answers provided Ms Nisha. These include a letter from the Northern Sydney Institute of 26 February 2014 that stated that Ms Nisha was enrolled as an F/T, fulltime from January to December 2008. Sixthly, there is a statutory declaration from Ms Nisha dated 1 February 2014 which stated that "I have finished my English language course in one complete year as a fulltime student" and a further statutory declaration of 12 February to the same effect. 1. There is no dispute that contrary to her statement, Ms Nisha that does have a criminal record. We have been provided through exhibit 4 a document that shows that Ms Nisha was convicted in Liverpool Local Court on 4 November 2010 in respect of what appears to be, and which could be called, generally a social fraud which amounted to $20,220 and which Ms Nisha was required to repay and still continues to repay. The fact that she continues to repay leads the Tribunal to the view that at the time Ms Nisha made her application to the Board, she must have remembered her conviction of 2010. Ms Nisha's explanation that it was simply a mistake in the light of other evidence to which we will come to shortly, the Tribunal cannot accept. 2. The Tribunal was provided with other evidence as to the veracity of the answers in her application concerning her attendance at TAFE. Oral and written evidence was provided from Ms Brunello who ran the course identified in the application. Critically Ms Brunello denied that she ever signed a document annexed to Ms Nisha's statement of dated 26 February 2014 to the effect that the course she attended was a "fulltime" course. We accept the evidence unconditionally of Ms Brunello which leads inevitably to the conclusion that someone it appears in the interests of Ms Nisha or Ms Nisha herself changed the document provided by Ms Brunello to include the words "F/T" to satisfy the requirements for registration. Ms Nisha when pressed as to how this came about gave responses which the Tribunal considers to be rather evasive and provocative evidence. It is not necessary for the Tribunal to determine exactly how the changes came about, at least it should state that regardless, Ms Nisha must have known when she annexed that document to her application that she was misleading the Board into believing a falsehood as to the nature of the course she did at Meadowbank TAFE. 3. Ms Nisha seeks to still maintain, despite the evidence of Ms Brunello to the contrary, that she was studying in a fulltime course and that is what led her to sign the statutory declarations. Ms Brunello made it quite clear that they were not fulltime courses, that they were courses of six hours per week for two afternoons per week which is a totally different formulation of the hours to which Ms Nisha has told us were the case. The Tribunal again accepts the objective evidence of Ms Brunello as she has of course no interest in these proceedings nor in giving of any misleading evidence and we found her evidence straightforward and of course consistent with her unamended statement. 4. The Board directed our attention as to its concerns of Ms Nisha' suitability, arising from an exchange of emails between the Board and Ms Nisha concerning the seeking details of the criminal history of Ms Nisha. This was in about January 2014. The Tribunal finds the terms of the request of Ms Nisha rather general in nature and therefore does not consider the response by Ms Nisha which was also general in nature to be evidence of any misleading intent on the part of Ms Nisha. In finding this, the Tribunal understands that although Ms Nisha has come to Australia with a background of having already spoken English, we have regard to the fact that English is her second language. It is noted she came to Australia in about 1999 and having worked in Australia essentially since and undertaken education course since then. Thus the Tribunal does not rely on this exchange of email in coming to its final decision in this matter. 5. Of some relevance is the failure by Ms Nisha to provide certain relevant documentation that we would have expected Ms Nisha to provide. This includes the "original" letter from Ms Brunello and details concerning her criminal record and payments that she might have well made to date in respect of that matter. Her lack of capacity to tell us the exact outstanding amount came as a surprise to the Tribunal given the amount involved and her financial circumstances. 6. Ms Nisha has told us that apart from admitting to various mistakes that she is sorry for the errors that were in the application and in a sense did not appreciate the significance of them and arguably did not read all of the requirements that were set out in the application, especially in respect of the declarations. However, the Tribunal cannot accept that as a satisfactory explanation as to how the rather important misleading statements were made and how the changes of the documentation occurred. 7. This is a de novo appeal and the Tribunal is not required to satisfy itself of any particular error by the Board in coming to its decision not to register Ms Nisha. Their reasoning is set out in their letter of 18 July 2014. 8. Mr Stafford for the Board opened that is was Ms Nisha's non‑compliance with the English language requirements which is the matter of most concern. 9. The Tribunal whilst acknowledging the importance of that requirement does not in the circumstances of the evidence that it has before it, consider that as the primary matter of concern in relation to the registration of Ms Nisha. 10. Rather, the Tribunal is of the view that Ms Nisha is not a "suitable person" to hold registration in a health profession having regard not only to her criminal history but more importantly to the misleading (and what the Tribunal has decided was intentional misleading) to the Board of matters identified above made in her application and thereafter in the follow-up exchanges between the Board and Ms Nisha in respect of the matters leading to the statutory declarations, and the provision of documentation from the Northern Sydney Institute and to a much lesser extent the exchange of emails. 11. For these reasons the Tribunal is of the view that not only s 55(1)(b) has relevance but further than s 55(1)(h) of the National Law has further relevance in finding Ms Nisha not fit for registration, given in particular the importance, the trust issues are in the practice of nursing. The trust is not just with patients but the trust is also needed between the nurse and her fellow nurses and her superiors and other health practitioners that operate within such an environment. 12. Given those findings and given recognition of those important matters, the Tribunal refuses to consent to any application for registration as a registered 13. Ms Nisha opposed the normal order for costs which follows the event, based on her lack of income and assets. This is not sufficient to resist the normal order. The Tribunal orders the Applicant to pay the Respondents costs as agreed or taxed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 June 2015