Hussein (Migration)

Hussein (Migration) [2019] AATA 1482 (31 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hany Hussein
Ms Roula Rostom
Miss Reina Hany Sayed Mohamed Mohamed Hussein
Master Ali Hany Sayed Mohamed Mohamed Hussein
CASE NUMBER:  1715171
DIBP REFERENCE(S):  BCC2017/2132198
MEMBER:Kira Raif
DATE:31 January 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 190 - Skilled - Nominated visa.

The Tribunal has no jurisdiction with respect to the other applicants.
Statement made on 31 January 2019 at 1:19pm
CATCHWORDS
MIGRATION – cancellation – Skilled Nominated (Permanent) – Subclass 190 Skilled Nominated – incorrect information – failure to disclose health issues – applicant relied on advice of agent – applicant responsible for content of form – applicant does not meet health requirements – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 99, 101-105, 107, 109, 111, 140
Migration Regulations 1994 (Cth), r 2.41, Public Interest Criterion (PIC) 4005

CASES

MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 190 - Skilled - Nominated visa under s.109(1) of the Migration Act 1958 (the Act).
The first named applicant (the applicant) is a national of Egypt. The applicant, his partner and two children, were granted the Skilled visas in December 2014. On 21 June 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 13 July 2017. The visas held by the applicant’s partner and children were also cancelled. The applicants seek review of the delegate’s decision.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.
The applicant appeared before the Tribunal on 7 August 2018 by telephone, to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Relevant law
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of Immigration of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.
Did the notice comply with the requirements in s.107?
Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.
The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act.
The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.
a.The applicant made the application for the visa on 1 October 2014. The application included his spouse and two minor children.
b.The applicant lodged an electronic application for a medical examination and provided the following answers concerning his medical history:
i.The applicant stated ‘no’ in response to a question concerning prolonged medical treatment and / or repeated hospital admission for any reason, including a major operation or psychiatric illness.
ii.The applicant stated ‘no’ in response to a question about kidney or bladder disease.
iii.The applicant stated ‘no’ in response to a question about prescribed pills or medication.
c.The visas were granted to the applicant and his family members on 9 December 2014 and they entered Australia on 24 September 2015.
d.On 24 June 2016 the applicant re-entered Australia and declared medication on his Incoming Passenger Card (IPC). The applicant was found to be carrying a number of prescriptions for different medications.
The primary decision record indicates that in response to an earlier NOICC the applicant provided a written submission in which he stated that he was born with one kidney and only discovered it when he was 30 years old, as he had no ill effects. He received a kidney transplant in 2004 because his one kidney had to be replaced. He had been taking anti-rejection medication since that time and regularly sees a doctor in Adelaide who prescribed medication.
In support of that submission, the applicant presented a letter from a doctor which states that the applicant underwent a kidney transplant in January 2004 at Cairo Medical Tower hospital. He was admitted only once for a period of 10 days and not at any other time. The letter indicates the applicant enjoys good health and normal kidney function. The applicant also presented a letter from an Australian doctor which refers to the applicant’s kidney function being normal.
In his written statement received by the Tribunal on 6 August 2018 and his oral evidence to the Tribunal, the applicant confirms that he received a kidney transplant in Egypt in 2004. The applicant claims that he did not intend to mislead and never tried to hide the information from Immigration. He states that he did disclose the information during the medical examination and at each of his visits to Australia, and his mistake was to rely on the agent. The applicant states that the scars were clearly visible during the medical examination and would have been obvious to the doctor so he had no intention of hiding the information. However, the Tribunal notes that the issue here is the information the applicant provided in his medical form which accompanied his visa application and not the information supplied to the Medical Officer during the health checks or during immigration clearance. The applicant claims he relied on the advice of a migration agent who misunderstood his situation but the Tribunal notes that s.111 of the Act provides that the cancellation provisions apply whether the non-compliance was deliberate or inadvertent.
The Tribunal finds that the applicant had a kidney transplant. The Tribunal finds that the applicant did have prolonged medical treatment associated with a major operation and subsequent treatment. The Tribunal finds that the applicant was taking prescribed pills or medication following the kidney transplant. The Tribunal finds that by answering ‘no’ to these questions, the applicant gave answers that were not correct. The Tribunal finds that the applicant did not comply with s.101 of the Act in a way described in the notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. They are:
The correct information
The correct information is that the applicant did undergo a major operation and was taking medication following the operation.
The content of the genuine document (if any)
This is not relevant in the present case.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
It is a requirement for the grant of the Class SN Skilled visa that the applicant must meet the health requirements in public interest criterion (PIC) 4005 in Schedule 4 of the Regulations. Assessment against that criterion would have included an assessment of the applicant’s past medical conditions and any ongoing treatment resulting from that condition. It is likely that if the correct information was known, a more thorough assessment of the applicant’s health would have been undertaken for the purpose of PIC 4005.
The applicant claims that his agent told him that the kidney transplant is not communicable and need not be disclosed on the form. The agent told him that he could mention the condition during the health assessment. The Tribunal is mindful that PIC 4005 does not only deal with communicable diseases but also with the cost to the community. If the information about the ongoing treatment and medication was known, a different assessment was likely to have been made in relation to the cost of the treatment, whether or not such an assessment would lead to the same outcome.
The applicant states in his submission to the Tribunal of 23 January 2019 that the panel doctor informed him that his condition is ‘perfect’ and that she would issue a positive and favourable recommendation. There is no medical evidence before the Tribunal to support these claims. While the panel doctor allegedly informed the applicant that he would have passed the health checks, the Review Medical Officer of the Commonwealth (RMOC) opinion before the Tribunal indicates that he would not have.
Ultimately, it is not necessary, for the purpose of this consideration, to determine whether the applicant would have met the visa requirements if the correct information was known. The Tribunal finds that the decision to grant the visa was based, at least in part, on incorrect information.
The circumstances in which the non-compliance occurred
In his written submission to the delegate the applicant states that he used a migration agent when he applied for the visa and fully disclosed his medical condition. He was not aware that the migration agent did not include the information in his application as the agent was located in a different country. The applicant states in his response to the NOICC that he specifically asked the agent about disclosing the medical information and the agent told him the Australian authorities were not interested in such conditions and the applicant relied on the advice of the agent.
In his submission to the Tribunal of 6 August 2018, the applicant also states that he did not complete the forms himself but used an agent, and he had informed the agent of his operation. The agent told him the condition does not represent any risk and Immigration would not be concerned about it. The applicant states that he did not know if the agent included the information. In oral evidence, the applicant also told the Tribunal that he lived in a different country and relied on an agent to do the paperwork. The agent asked him the questions on the phone and the applicant responded to the questions. The applicant states that he told his agent about the kidney transplant in 2004 but because he was doing well, the agent did not think he had to mention the condition.
The Tribunal finds this evidence problematic. The Tribunal is mindful that the question on the form is not only about kidney disease. Even if, by the time of the visa application, it could be said that the applicant did not have a kidney disease, the other two questions remained relevant. The applicant did have prolonged medical treatment and/or hospital admission and he was taking medication. Even if there was a misunderstanding in relation to one question, the other two questions contained incorrect answers and this should have been obvious to the applicant.
The Tribunal has other concerns with the applicant’s claims. The applicant is responsible for the content of the form, whoever completed the form on his behalf. The form specifically refers to all medical conditions, kidney disease, hospital admissions and the taking of medication. That contradicts any advice the applicant claims to have received from his agent that only HIV was relevant and nothing else needed to be disclosed. In the Tribunal’s view, by reading the form, the applicant would have been put on notice that information about his condition needed to be disclosed. The applicant told the Tribunal that he did not read the forms but in the Tribunal’s view, it was the applicant’s responsibility to do so. Importantly, the Tribunal is mindful that under s.99 of the Act, information is given even if it is provided by another person.
The applicant states that when he did his medical examinations, the scar was noticeable to the doctor and he also answered all the questions from the doctor and did not withhold information. With respect, it is not up to the doctor conducting medical examinations to seek information about what condition the applicant may have had. If the condition was disclosed, it is likely that the applicant would have been questioned about it but in the absence of such disclosure, it is not reasonable to assume that it was up to the doctor to identify the scar and seek further information.
The applicant states in his submission of 6 August 2018 that whenever he travelled to Australia, he had declared the medication and did not hide the fact that he was taking medication, and upon his entry on 24 June 2016 he also cooperated with the officers at the airport. The Tribunal accepts that this may have been the case but the issue here is the information the applicant gave in his application form, rather than upon his entry to Australia. The notice does not refer to any breach of s.102.
The present circumstances of the visa holder
In his written submission to the delegate the applicant refers to his family’s settlement in South Australia. The applicant states that he decided to pursue further study and referred to his enrolment in a Master of Applied Finance. The applicant states that he paid significant tuition fees and that he would be able to contribute to the economy through the payment of taxes in the future. The Tribunal is mindful that despite his claim to the delegate that the applicant has explored employment opportunities in Australia and intends to contribute to the economy through the payment of taxes, the applicant chose to do that in a different country.
In his submission to the Tribunal the applicant states that for various reasons, he decided to leave Australia and has established residence overseas. The applicant states that the family remain committed to Australia although he also notes that if his visa is not reinstated, he may be unable to return to Australia. The applicant states that he has sold his land overseas to be able to fund his stay in Australia. The Tribunal accepts that evidence but also notes that the applicant has now made the decision to settle in a different country.
In his written submission to the Tribunal of 6 August 2018 the applicant states that he has spent over $350,000 in Australia, including rent and tuition fees and other living expenses. He was also paying full cost of the medication. He was offered jobs on commission but not salaried jobs, so he completed the Diploma and Masters courses and then had job interviews. The applicant states that the decision to cancel his visa was ‘financially disastrous’ to his family. He had to sell the property in Dubai to finance his stay in Australia and forego his tax free income to move to Australia.
The applicant states that he established a consulting company in Adelaide with business opportunities overseas. The applicant states that while in Australia, he invested his funds through the Australian brokers and suffered significant losses. The applicant states that he had significant assets and was not ‘financially desperate’ to include wrong information in his application. After his visa was cancelled, he received some money from his brother as he found it difficult to find a job due to his visa status. Because of the delay in the processing of his application, and due to financial pressures, the family was forced to leave. They still love Australia and hope to return.
The applicant’s partner (Ms Rostom) also provided a statement to the Tribunal. She states that from the beginning they tried to integrate into Australian community. Their children attended the local primary school and had Australian friends. Ms Rostom states that she studied English at TAFE and worked as a volunteer at TAFE assisting Syrian refugees.
The Tribunal accepts that while in Australia, the applicant and his family had taken steps to settle in Australia and integrate into the community. The Tribunal accepts they had been involved in various activities, that the children adapted to life in Australia and the family felt they were part of the Australian community. However, the family’s present circumstances are that they have left Australia. The applicant explained that he had problems finding a job on a bridging visa and he lost money through his investments. The family had to give up their lease and could not commit to a long-term lease, and due to the uncertainty they made the decision to leave.
The applicant told the Tribunal that at present his wife and children live in Lebanon and he lives between Dubai and Egypt. The applicant states that his wife cannot get a visa for Dubai or Egypt because she is Shiite. The applicant said that legally, he can live in Lebanon but given the current situation, it would not be safe for the family. The applicant stated that they did not tell the children about the visa issues and the children look forward to returning to Australia. In his submission of 23 January 2019 the applicant expressed hope that the visas can be reinstated so that his children can attend a primary school in Australia.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s subsequent behaviour under the above provisions.
Any other instances of non-compliance by the visa holder known to the Minister

There are no other known instances of non-compliance.
The time that has elapsed since the non-compliance
The application for the visa was made in October 2014 and nearly four years passed since the non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no other known breaches of the law.
Any contribution made by the holder to the community.
The applicant describes in his submission to the Tribunal that he looked for employment in his area of expertise and there was interest from reputable financial institutions, but he had difficulty finding a job due to his visa status. The applicant refers to operating his own company and he provided to the Tribunal character and professional references. The Tribunal accepts that evidence.
The applicant’s partner refers to her voluntary work at TAFE where she acted as an interpreter for the Syrian refugees. The Tribunal accepts that evidence and accepts that the family had made some contribution to the community. The applicant spoke in oral evidence about making links within the community. The Tribunal accepts his evidence.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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
If the applicant resided in Australia and if the applicant’s visa is cancelled, unless he is granted another visa, the applicant would become an unlawful non-citizen and may be detained. The applicant has left Australia at the time of this decision so he is unlikely to become an unlawful non-citizen unless he re-enters Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention. The Tribunal notes that the applicant has now left Australia and unless he is granted another visa or the present visa is reinstated, he will be unable to return to Australia. The applicant may be subject to an exclusion period in relation to future visa applications. The applicant and his family may have also lost certain entitlements they may have acquired as permanent residents of Australia.
Whether there would be consequential cancellations under s.140
The visas held by the applicant’s spouse and children had been cancelled.
Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child
The applicant and his partner state in their submission to the Tribunal that their two children had settled in Australia and had attended Australian schools. It is stated that the children developed close friendships in Australia and look forward to returning to Australia. The Tribunal accepts that evidence, although the Tribunal is mindful that the children had spent a relatively short period in Australia. The family entered Australia in September 2015 and departed around February 2018. The children had spent the vast majority of their lives in other countries. The Tribunal is prepared to accept that the children liked living in Australia but there is nothing before the Tribunal to indicate that they have had any difficulties settling in – or resettling – in any other country.
The Tribunal is of the view that the best interests of the children require the children to remain with their parents, given their young age, irrespective of their place of residence. In the present case, the applicant and his partner made the decision to depart Australia and to live in a different country. The Tribunal is not satisfied that the best interests of the children had been adversely affected by that decision. As long as the children remain with their parents, the Tribunal does not consider that the best interests of the children require their presence in Australia.
Ms Rostom states in her submissions to the Tribunal that she and the applicant live in different countries and that because of their religion, they cannot live together. She claims that they can do so in Australia. The parties have not presented satisfactory evidence to the Tribunal that they have been denied residence permits or other opportunities to live together in United Arab Emirates (UAE) or Lebanon or any other country. The applicant’s evidence to the Tribunal is that it is unsafe for the family to live in Egypt or Lebanon, rather than they have no legal ability to live together. The applicant also told the Tribunal that if the situation in Lebanon becomes unsafe, the family would relocate to Egypt. The applicant states that it is also unsafe in Egypt and Shiite Muslims get killed in Egypt, but the Tribunal is mindful that the family appears to have been living together, whether in UAE, Egypt or Lebanon prior to their migration to Australia and the Tribunal is not satisfied that they cannot live safely together in some country. The Tribunal does not accept that Australia is the only country where the family can live together, even if it is their preferred country, and the Tribunal does not accept that the cancellation of the visa needs to lead to the applicant and his partner and children living apart.
The applicant told the Tribunal that he has spent substantial funds in Australia previously and if he can return to Australia, he can find a job and give a better future to his children. The applicant states that the Arab world is not comparable to Australia and the children will have better quality of life and education and better values in Australia. The Tribunal is mindful that the applicant is employed and is presently capable of providing for his children. As the children have spent a fairly short period of time in Australia, the Tribunal is not convinced that the children’s lives in Australia would be significantly better than in any other country they may choose to live in. The Tribunal is also mindful that the family made the decision to leave Australia before there was any requirement for them to do so and at least part of the applicant’s motivation for that decision, on his own evidence, was the offer of employment. The Tribunal does not accept that the applicant would decide to put his family at risk for the benefit of a job. The Tribunal does not accept that the family is at risk in their present circumstances. The Tribunal does not consider that the children’s best interests require their presence in Australia.
In his response to the NOICC the applicant and his partner provided a number of claims relating to Australia’s non-refoulement obligations. They refer to their religion and the difficulties they have faced as a result of religious differences. The applicant and his partner also repeated these claims in their oral evidence to the Tribunal. However, the Tribunal notes that the applicant left Australia with his family. As the family are no longer in the migration zone, the Tribunal finds that Australia’s non-refoulement obligations do not arise.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members
The Tribunal gave the applicant an opportunity to undertake an RMOC review to assess whether the applicant could have passed the medicals, if the correct information about his medical condition was known. On 7 September 2018 the Tribunal received advice from the RMOC that the applicant did not meet the health requirements. Although the Tribunal is mindful that the applicant would have been required to meet the health requirements some years earlier when he made the application for the visa, the fact that he does not meet the health requirements at present offers a strong indication that he would have been unlikely to meet the health requirements before the grant of the visa. That is, if the applicant had disclosed his medical condition when making the visa application, it is likely that he would have been assessed as not meeting the requirements for the grant of the visa. The applicant and his family members may not have been granted the visas if the correct information was known.
The applicant expressed a preference to undertake a new health assessment by a panel doctor. The Tribunal sought to make arrangements to enable the applicant to do that but was ultimately informed by the Department that a fresh health assessment can only be done if a new visa application is lodged and not in the context of the Tribunal review. The applicant indicated that he did not wish to make a new visa application.
The Tribunal has considered the totality of the applicants’ circumstances. The Tribunal has formed the view that there are grounds for cancelling the visa because the applicant answered questions on the application form in a way that incorrect answers were given. The Tribunal has formed the view that the applicant did not comply with s.101 of the Act.
The Tribunal acknowledges the applicant’s evidence that he relied on the advice of his agent and did not intend to mislead. The Tribunal acknowledges the applicant’s evidence that the scar was clearly visible during the medical examinations and the condition could have been easily ascertained at that time. However, as noted above, the Tribunal has formed the view that it is up to the applicant to ensure all relevant information is fully disclosed and it is not up to the examining doctor to make inquiries. The Tribunal also notes that some of the questions on the medical forms were highly relevant to the applicant’s condition even if he believed he no longer had to disclose the transplant. The Tribunal has formed the view that the applicant has not taken all reasonable steps to ensure the full disclosure of information, as he was obliged to do under the Act.
The Tribunal accepts that the applicant and his family had lived in Australia for a number of years. The applicant had completed study in Australia and had made significant financial investments. His family and his children had settled in Australia and the children attended schools and formed friendships. The Tribunal is mindful that the family had made a decision to relocate to another country.
The Tribunal acknowledges and accepts the applicant’s evidence that a significant degree of hardship would be caused to the family as a result of their visas being cancelled. The Tribunal acknowledges the applicant’s evidence that he and his partner would experience significant difficulties establishing residence in the same country, given their personal circumstances. The Tribunal accepts that the family prefer to live in Australia and the Tribunal also accepts that the applicant had made a contribution to Australia during his residence in Australia and will be able to make a greater contribution in the future if he were to return to Australia.
The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation. In particular, the Tribunal has formed the view that the best interests of the children do not require their presence in Australia and while they did settle in Australia in the past, they have now been living in a different country – having left Australia voluntarily – for some time. The Tribunal considers that the best interests of the children require their residence with their parent or parents irrespective of the country of residence.
The Tribunal acknowledges that there are factors against the cancellation. However, the Tribunal places significant weight on the fact that the RMOC formed the opinion that the applicant does not meet the health requirements. That is, if the correct information was known, the applicant would be unlikely to have met PIC 4005 and if that was the finding, the applicant and his family would not have been entitled to the grant of the visas. In the Tribunal’s view, that factor outweighs other considerations.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Subclass 190 - Skilled - Nominated visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Kira Raif
Senior Member

[2019] AATA 1482

31 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction