Gill (Migration)

[2019] AATA 5971

Gill (Migration) [2019] AATA 5971 (2 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurbhej Singh Gill

CASE NUMBER:  1710091

HOME AFFAIRS REFERENCE(S):          BCC2016/1986922

MEMBER:Mark Bishop

DATE:2 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 02 October 2019 at 11:16am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – relationship ceased – applicant divorced from his wife – repeated requests to postpone hearing – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 2, 5, 116, 360, 379
Migration Regulations 1994, r 1.12

CASES

MIAC v Li (2013) 249 CLR 332          

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 May 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(a)on the basis that the decision to grant the visa was based wholly or in part on a particular fact or circumstance that is no longer the case or that no longer exists. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. In this case the delegate made a finding the applicant was no longer a member of the family unit of his former wife Ms Prabhjot Kaur Gill as they were divorced.

3. On 5 July 2019 the Tribunal wrote to the applicant and invited him to attend a hearing scheduled for 25 July 2019. The Tribunal advised the applicant “…we will only change this date if satisfied that you have a very good reason for being granted an adjournment…”

4. On 23 July 2019 the applicant forwarded an email to the Tribunal and advised “ I am currently sick and doctor give me advise to take rest for a couple of day, that’s why I can’t attend my hearing for tomorrow, for your convenience I have attached my medical certificate, can you please reschedule my hearing”

5. Attached to the email was a medical certificate that advised Mr Gurbhej Gill has been feeling quite low, anxious and depressed since his last AAT hearing as he is very uncertain about his academic future in Australia. I have therefore advised him to take one month off (from 22/07/19 to 22/08/10) work and studies to concentrate in his health”

6. In response on 23 July 2019 the Tribunal advised the applicant it agreed to the request  and would reschedule the hearing

7. On 9 September 2019 the Tribunal wrote to the applicant and invited him to attend a hearing scheduled for 2 October 2019. The Tribunal advised the applicant “…we will only change this date if satisfied that you have a very good reason for being granted an adjournment…”

8. On 30 September the applicant provided sent an email to the Tribunal that stated “I am currently sick and doctor give me advise to take rest for a couple of days, that’s why I cannot attend

9. Attached to the email was a copy of a medical certificate dated 26 September 2019. The medical certificate stated “Mr Gurbhej Gill has been feeling quite low, anxious and depressed since his last AAT hearing as he is very uncertain about his academic future in Australia. I have therefore advised him to take 6 Weeks off (from26/09/19 to 07/11/19) work and studies to concentrate more on his health”

10. At the bottom of the medical opinion referred to above in paragraph 5 was the statement “Please note this Certificate is not permissible to be used for Police Matter or Court of Law”

11. On 30 September 2019 the Tribunal wrote to the applicant and advised as follows:

    ·The Tribunal has considered the request carefully but has decided not to postpone the hearing.

    ·The Tribunal has reviewed the application for postponement and notes the proffered medical certificate contains the disclaimer “Please note this Certificate is not permissible to be used for Police Matters or Court of Law”. The Tribunal notes the medical opinion does not advise the applicant is unable to attend a scheduled hearing. The Tribunal notes the medical certificate does not advise the applicant should not attend the scheduled hearing. Accordingly the medical certificate has little relevance in an application to the Tribunal.

    ·The Tribunal notes it has advised the applicant on two separate occasions if the applicant does not attend the scheduled hearing the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal or may dismiss the review application without any further consideration of the application on the information before the Tribunal.

    ·The hearing will therefore proceed as set out below. Please note that all details about the hearing, as set out in the hearing invitation letter dated 9 September 2019 still apply.

    ·If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member

12. At 3.31pm on 1 October 2019 (the day of the scheduled hearing) the applicant provided a further email to the Tribunal that advised “Member I am sick and doctor said I need to take rest and not attend interview for tomorrow. Can you please reschedule my hearing”

13. Attached to the email was a medical certificate dated 1 October 2019 signed by the same doctor. It advised “Mr Gurbhej Gill is my patient since December 2018 and has been complaining of feeling quite low, anxious, depressed and has insomnia since his last AAT hearing as he is very uncertain about his academic future in Australia. He has informed me [he] feels mentally unwell and unprepared for this hearing due to his ongoing anxiety symptoms and believes it would be unfair to him for the Tribunal to decide on his case when he is feeling this way. Hence I would be highly obliged if he could have his hearing postponed for another 6 weeks so that he could get time to cope better with his symptoms and situation as deemed appropriate by you”

14. As there have been multiple requests for postponement of hearing dates it is appropriate for the Tribunal outline the relevant principles involved in considering such requests.

15. The Tribunal turns to consider this material. The High Court of Australia (HCA) in MIAC v Li (2013) 249 CLR 332 gave consideration to the factors relevant in a request for adjournment. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner which is reasonable and has regard to the statutory purposes of s.360. In this case the applicant has put a number of requests for adjournment.

16. In this review application the treating doctor is the same person located at the same medical clinic in Nerang. He advised he has been treating the applicant since at least December 2018. In sequential medical certificates the treating doctor advises the applicant complains he is “feeling quite low, anxious and depressed” as he is “very uncertain about his academic future in Australia” and on occasion complained of “insomnia”.

17. In each occasion in the recent past the applicant has advised his doctor he feels unwell because of a scheduled or re-scheduled AAT hearing. His doctor has provided medical certificates often giving lengthy periods of time (4 week and 6 weeks) away from work and study. The Tribunal detects the beginning of a pattern.

18. In none of the medical certificates does the treating doctor advised the applicant is unfit to attend a review hearing. In none of the medical certificates does the treating doctor advise the applicant should not attend a review hearing. In none of the medical certificates does the treating doctor advise of a course of remedial treatment to address the issues of the applicant “feeling quite low, anxious and depressed”. In none of the medical certificates does the treating doctor provide a prognosis for the future. In none of the medical certificates does the treating doctor advise of a referral or of the applicant seeking a referral to a trained expert (whether that be a psychiatrist, psychologist medical counsellor or other professional counsellor) to gain assistance relating to  “feeling quite low, anxious and depressed”

19. The applicant links his “feeling quite low, anxious and depressed” to scheduled hearings at the AAT. Quite expressly the treating doctor does not outline or confirm this link. The treating doctor simply repeats the advice of the applicant. He does not make a finding or make a diagnosis to that effect.

20. The periods of absence from work and study are increasingly lengthier.

21. The applicant did not provide to the Tribunal any psychiatric, psychological medical or other professional reports (of course, excluding the material outlined above) relating to stress or otherwise related to an inability to attend a hearing because of stress related factors.

22. The Tribunal is aware s.2A of the AAT Act provides that in the carrying out its functions, the Tribunal must pursue the objective of providing a mechanism for review that is “… (b) fair, just, economical, informal and quick…” (emphasis added).The use of the word “quick” is a somewhat unusual word to use when outlining the objective of providing a mechanism for review. It is not found in the objectives of like Tribunals or review agencies. It is a direction to the Tribunal from the Parliament as is all of s.2A. The Tribunal gives it no particular significance. The Tribunal notes it is one of many considerations in the Act.

23. The Tribunal is not minded to delay its review hearing processes further concerning the review applicant on the basis of assertions, unsupported by professional opinion or other evidence that the applicant is suffering from “feeling quite low, anxious and depressed” and hence unable to repeatedly attend scheduled hearings.

24. In the current review application the Tribunal is satisfied the applicant has been provided with adequate notice of date of hearing and was able to provide submissions to the Tribunal if deemed appropriate. In any event it is the intention of the Tribunal to have regard to all material on both the Tribunal and Departmental files.

25. At 9.11am on 2 October 2019 the Tribunal advised the applicant the further request for a postponement of the re-scheduled hearing was refused.

26. The applicant did not provide a written submission to the Tribunal. The only information before the Tribunal is the material on the Departmental and Tribunal files.

27. The applicant did not appear before the Tribunal on 2 October 2019 at the scheduled time and place. Having reviewed the Tribunal file (and outlined it above), the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(4) the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

28. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

29. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(a) as set out in paragraph 2 above. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

    s.116(1)(a) - Fact or Circumstance for visa grant no longer exists

30. A visa may be cancelled under s.116(1)(a) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists.

31. In this case a NOICC was forwarded to the applicant on 22 March 2017. The applicant responded on 7 April 2017 in writing. The applicant advised his wife had left him and they were now divorced. He advised he wished to study English in order to get a better job in India. He advised he had applied for a Student visa. He requested that his current visa not be cancelled until the outcome of his application for a student visa was known. The applicant did not make the Tribunal aware of any further developments relating to this possible application for a Student visa.

32. The delegate made a finding the applicant was no longer a member of the family unit of Ms Prabhjot Kaur Gill as he had been divorced from her on and from 17 April 2016.

33. His student visa was granted on the basis that he met, amongst other criteria, the secondary criteria for this visa on the basis he was a member of the Prabhjot Kaur GILL's family unit. Regulation 1.12 of the Migration Regulations 1994 defines ‘member of the family unit’ The Tribunal is satisfied the applicant is no longer a member of the family unit of Prabhjot Kaur GILL.

34. As the applicant ceased to be in an ongoing relationship with Prabhjot Kaur GILL he ceased to be either a spouse or a de-facto partner of that person as defined respectively by sections 5F and 5CB of the Migration Act 1958. As such he ceased to be a member of her family unit as prescribed by Reg 1.12 of the Migration Regulations 1994.

35. Hence the applicant’s visa may be cancelled under paragraph 116(1)(a) which sets out the ground for cancellation as being the decision to grant the visa was based wholly or in part on a particular fact or circumstance that is no longer the case or that no longer exists.

36. Based on the above information the Tribunal is satisfied that there is a ground for cancellation of the applicant’s visa under paragraph(s) s116(1)(a) - fact/circumstance no longer exists of the Act.

    Consideration of discretion

37. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

38. The purpose of the applicant’s travel to and stay in Australia was because he was a member of Prabhjot Kaur GILL's family unit. The delegate made a finding that departmental records indicated he was longer a member of that family unit and the circumstances which permitted the grant of the visa no longer exist. The Tribunal is therefore unable to place weight in the applicant’s favour for this consideration.

    The extent of compliance with visa conditions

39. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that the applicant will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

40. Although there may be some hardship to the applicant as a result of the cancellation the Tribunal is satisfied that this is not enough of a reason to make a decision to not cancel his visa. Therefore the Tribunal has placed some weight on this consideration in the applicant’s favour.

    Circumstances in which ground of cancellation arose

41. The ground arose when the Department became aware the applicant is no longer in a relationship with Prabhjot Kaur GILL and as the applicant is no longer a member of that family unit, then a circumstance which permitted the grant of the visa no longer exits.

42. The Tribunal notes in the applicant’s response to the (NOICC) the applicant stated he applied for a student visa, the outcome of which has not been decided. PRISMS as set out in the decision record indicated the applicant has an approved COE for a Certificate III in Spoken and Written English due to commence on 15 May 2017.

43. Whilst steps have been taken by the applicant to regulate his immigration status this has occurred after the NOICC was issued to him on 22 March 2017. Departmental records indicate the relationship dissolved in April 2016. The Tribunal therefore places no weight on this consideration in the applicant’s favour.

    Past and present behaviour of the visa holder towards the department

44. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

45. If the Tribunal affirms the decision of the delegate to cancel the visa, the applicant will be able to apply for a Bridging Visa E to allow him to lawfully remain in Australia while his Student visa application continues to be processed. If the Tribunal affirms the decision of the delegate to cancel the visa this will not affect his ability to be granted the visa, provided he can meet all relevant criteria.

    Whether there would be consequential cancellations under s.140

46. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Whether any international obligations would be breached as a result of the cancellation

47. There is nothing before the Tribunal to indicate there are international obligations to consider.

48. Any other relevant matters

49. If the applicant’s visa is cancelled he will become an unlawful non-citizen and liable to detention under s189 and removal under s198 of the Migration Act 1958. The applicant will have limited options to apply for further visas in Australia and may be required to return to his country of origin. The Tribunal has considered the legal consequences and therefore has placed some weight on this consideration in the applicant’s favour.

50. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not a member of the family unit of Prabhjot Kaur GILL from 17 April 2016 and the Tribunal is satisfied there is a ground for cancelling the applicant’s Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa and the Tribunal is satisfied the grounds for cancelling the visa outweigh the grounds for not cancelling.

51. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

52. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Mark Bishop
    Member