Mohamad Anwar (Migration)

[2018] AATA 3354

Mohamad Anwar (Migration) [2018] AATA 3354 (6 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohamad Faizal Bin Mohamad Anwar
Ms Intan Jusmira Binti Jamaluddin
Miss Natasha Ameira Binti Shaharizal
Miss Neeshya Irdina Sofiah Binti Shaharizal
Mr Tareeq Zaffar Bin Mohamad Faizal
Mr Tareeq Zayyad Bin Mohamad Faizal

CASE NUMBER:  1701283

HOME AFFAIRS REFERENCE:                BCC2016/3202623

MEMBER:Jan Redfern

DATE:6 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 6 September 2018 at 12:48 pm.

CATCHWORDS

MIGRATION – Subclass 457 (Temporary Work (Skilled)) visa – cancellation under s.116(1)(b) of the Migration Act 1958 – applicant ceased to hold registration as a medical practitioner in Australia and removed from the public register – ground for cancellation established – whether the power to cancel the visa should be exercised – consideration of the extent of compliance with visa conditions, degree of hardship to the applicant and his family, the legal consequences of cancellation, the consequential cancellations, the applicant’s past and present behaviour towards the Department, the circumstances in which the ground for cancellation arose and the purpose of the applicant’s travel to and stay in Australia – decision affirmed

PRACTICE AND PROCEDURE – invitation to comment or respond to adverse information under s.359A of the Migration Act 1958 – failure to respond to invitation – loss of entitlement to a hearing

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 48, 65, 116, 140, 189, 198, 348, 359, 359A, 359C, 360, 362A, 363(3)(b)
Migration Regulations 1994 (Cth), r 1.12; schedule 2, cl 457.3; schedule 4 – PIC 4013, 4014; schedule 5 – cls 5001, 5002, 5010; schedule 8 - condition 8107
Administrative Appeals Tribunal Act 1975 (Cth), ss 24Z, 35
Health Practitioner Regulation National Law (Victoria) Act 2009, schedule – 82(1)(c)(i)(C), 112(2)(a), 116(1),156(1)(a), 156(1)(c)
Privacy Act 1988

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Kim v Minister for Immigration and Citizenship [2008] FCAFC 73
Rani & Ors v Minister for Immigration & Multicultural Affairs (1997) 80 FCR 379
Shi v Migration Agents Registration Authority [2008] HCA 31
Tien & Ors v Minister for Immigration & Multicultural Affairs (1998) 89 FCR 80

SECONDARY MATERIALS

Procedures Advice Manual – PAM3 ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 January 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ 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 which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v Minister for Immigration & Multicultural Affairs (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v Minister for Immigration & Multicultural Affairs (1998) 89 FCR 80 at [96]. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

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

   BACKGROUND

5. On 4 June 2015, the applicant was granted a temporary Subclass 457 work visa. His wife and four children were issued visas as members of his family: refer ss.5(1) and 65 of the Act; cl.457.3 of Schedule 2 and r.1.12 of the Migration Regulations 1994 (the Regulations). The applicant’s sponsor for his visa was Australian Medical Holdings Pty Ltd as trustee for the Camberwell Medical Trust.[1] The nomination was approved on 1 June 2015 for the applicant to work in the medical practice operated by the sponsor in the occupation of medical practitioner, which was located in Victoria.[2]

   [1] Tribunal file, folio 4 (back).

   [2] Tribunal file, folio 4 (back).

6. In order to be able to lawfully perform the nominated occupation in Australia it is mandatory for a practitioner to be registered with the Australian Health Practitioner Regulation Authority (AHPRA) under the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law).

7. The grant of the applicant’s visa was subject to condition 8107(3)(c)(i) of Schedule 8 to the Regulations which provided as follows:

   (c)  if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder's position is situated--the holder:

   (i)    must hold the licence, registration or membership while the holder is performing the occupation;

8. By letter dated 14 October 2016 from AHPRA, the Department of Immigration and Border Protection was advised that the applicant had ceased to hold registration as a medical practitioner in Australia and that his name had been removed from the public register.

9. On 3 November 2016, the applicant was notified by a delegate of the Minister of the intention to consider cancellation of his visa on the basis that the Department had received advice that, as that 24 March 2016, the applicant no longer held a licence, registration or membership with AHPRA.[3] It was contended that the applicant had not complied condition 8107 and that his visa may be cancelled under s.116(1)(b). The applicant was given five working days to respond to the notice of intention to cancel.[4] For reasons that are not apparent from the Department file, a second notice of intention to consider cancellation was sent to the applicant by letter dated 11 January 2017.[5] This notice, which superseded the notice issued on 3 November 2016, stated that the applicant ceased to hold registration as a medical practitioner and his name was removed from the public register on 14 October 2016.[6]

   [3] Department file, folios 16 – 18.

   [4] Department file, folio 17 (back).

   [5] Department file, folios 74 – 76.

   [6] Department file, folio 75.

10. By emails dated 7 November 2016 and 16 January 2017,[7] the applicant responded to the notice to the following effect:

    [7] Department file, folios 80 – 101 and 27– 48.

    (1)The applicant had been approved for a Subclass 457 visa since 4 June 2015 and he been working at his sponsor’s clinic, DermaMed Skin Clinic, as a cosmetic surgeon since the approval of his visa.[8] He was covered by medical professional indemnity insurance for clinical work and he was approved by AHPRA under a supervised practice condition.[9] This meant that he was only able to work under his supervisor appointed by AHPRA in an accredited facility.[10] His supervisor was also his sponsor.[11]

    [8] Department file, folios 48 and 101 (back)

    [9] Department file, folio 101 (back).

    [10] Department file, folio 101 (back).

    [11] Department file, folio 101 (back).

    (2)The applicant performed procedures under local and general anaesthetic in the DermaMed clinic run by his sponsor, Dr Rodney Aziz.[12] Dr Aziz changed his status from an employee to a sole contractor/sole business owner with an ABN.[13]

    [12] Department file, folios 101 (back) and 50.

    [13] Ibid.

    (3)On 6 January 2016, the applicant lodged his registration renewal application with AHPRA.[14]

    [14] Ibid.

    (4)He was advised in mid-January 2016 that ‘DermaMed was not registered for general anaesthesia’ and ‘did not have the registration to conduct such cases.’[15] When the applicant asked his sponsor about this, he was informed that the DermaMed clinic was ‘well prepared’ for such cases and he would ‘not have any problems with renewal of [his] registration and professional indemnity insurance.’[16]

    [15] Ibid.

    [16] Ibid.

    (5)The applicant says that ‘some anaesthetists had reported this matter to the [H]ealth [D]epartment as they were not comfortable doing general anaesthetic cases in [the] DermaMed [clinic].’[17] The DermaMed clinic was visited in May 2016 by the Department of Health and Human Services.[18]

    (6)In April 2016 the applicant was told by the Health Department that the DermaMed clinic ‘did not have the license to operate procedures under general anaesthesia’ and the applicant would ‘have to stop doing any procedures under local or general anaesthetic’ at the clinic.[19]

    (7)The applicant raised the issue with AHPRA and was informed that the DermaMed clinic did not have the relevant form of accreditation.[20] The applicant’s sponsor, Dr Aziz, had other registered general practices which were accredited and these clinics were run by his company, Australian Medical Holdings Pty Ltd as trustee for the Camberwell Medical Trust.[21]

    (8)The applicant’s sponsor did not adhere to the relevant notices and was issued with an ‘urgent [n]otice to shut down all surgery from the clinic.’[22]

    (9)By the end of June 2016, AHPRA had informed the applicant that he needed to change his place of practice and find a new sponsor if he was to renew his practising licence and to continue practising.[23] From 19 May 2016 the Health Department gave multiple recommendations to his sponsor to follow but he did not follow those recommendations until 21 June 2016.[24]

    (10)The applicant says DermaMed imposed unnecessary deductions from his portion of the fees and profited from his procedures.[25] In the circumstances the applicant could not continue working with the sponsor, as stipulated, and could not work anywhere else because of the conditions on his visa.[26]

    (11)The applicant has been unable to work and has experienced financial difficulties.[27] He has been unable to pay bills. He says his former sponsor put him in a ‘very difficult position.’[28]

    (12)His wife was very happy living in Victoria and had made new friends. [29] His eldest daughter had just finished Foundational Studies at Swinburn University and will commence a Bachelor of International Business in January 2017.[30] His 16 year old daughter was undertaking her final year of school at Kew High School and had settled in well.[31] He also had two four year old twin boys who were in kindergarten and had adjusted well.[32] They were happy and making many friends. The applicant says he has received a few offers for interviews but they were several hours away from where he resides with his family and he did not wish to relocate.[33]

    (13)He was attending counselling sessions to help him through this ‘terrible ordeal.’[34] The applicant had attended a few interviews over the past few months he was confident that he would be able to get a new job with an ‘ethical sponsor’ and that he would be able to undergo an assessment for the position of medical administrator/medical director.[35]

    (14)The applicant asked that the delegate not cancel his visa.[36]

    [17] Department file, folio 101 (back) and 50.

    [18] Department file, folio 100 and 50 (back).

    [19] Ibid.

    [20] Ibid.

    [21] Ibid.

    [22] Ibid.

    [23] Ibid.

    [24] Ibid.

    [25] Ibid.

    [26] Department file, folio 100 (back) and 49 – 50 (back).

    [27] Department file, folios 99 – 100 (back) and 49.

    [28] Department file, folio 99 and 49.

    [29] Ibid.

    [30] Ibid.

    [31] Ibid.

    [32] Ibid.

    [33] Ibid.

    [34] Department file, folios 99 (back) and 49.

    [35] Department file, folios 99 (back).

    [36] Department file, folios 99 (back) and 49.

11. The applicant provided information in support of his claim including a notice of hearing before the Victorian Civil and Administrative Tribunal (VCAT) in relation to rented premises and an application for possession of the premises,[37] an order to vacate issued by VCAT on 30 November 2016,[38] an infection control inspection report in respect of DermaMed clinic dated 19 May 2016,[39] the fees and charges that he said were wrongfully claim by Dr Aziz,[40] letter of offer from the La Trobe University,[41] national police history check,[42] correspondence between the applicant, AHPRA and the sponsor regarding the suspension of the applicant’s registration and application for renewal,[43] correspondence from the Department of Health in relation to the infection control report,[44] correspondence with the Department of Health regarding the operating theatre at the DermaMed clinic and correspondence with between the applicant and Dr Aziz.[45]

    [37] Department file, folios 45 – 46 and 97.

    [38] Department file, folio 81.

    [39] Department file, folios 20 – 25, 83 – 84 and 93 – 96.

    [40] Department file, folios 27– 29 and 90.

    [41] Department file, folio 80.

    [42] Department file, folio 82.

    [43] Department file, folios 42 (back) – 44.

    [44] Department file, folios 91 – 93 (back).

    [45] Department file, folios 85 – 89 and 37 – 41.

12. I note that the response by the applicant includes various adverse claims that he made about his sponsor. While these claims are summarised in this background to provide details of the applicant’s claims, a number of his claims about his sponsor have not been independently corroborated. This is referred to in more detail below in my reasons.

13. On 19 January 2017, the delegate of the Minister decided to cancel the applicant’s visa.[46] In summary, the delegate found that the applicant had failed to comply with the conditions attached to his visa, namely condition 8107(3)(c)(i) that required the applicant to hold a licence, registration or membership that is mandatory to perform the nominated occupation.[47] In this case the relevant licence, registration or membership required was registration with AHPRA.[48] According to the correspondence from AHPRA dated 14 October 2016, the applicant had ceased to hold registration as a medical practitioner and there was no evidence that he had regained or held the registration required by the condition.[49] The delegate was therefore satisfied that the applicant did not meet the requirements of condition 8107(3)(c)(i) attached to his visa.[50] The delegate was therefore satisfied that as the applicant had not complied with the condition on his visa, there was a ground for cancelling his visa under s.116(1)(b) of the Act.[51] The delegate noted that, after weighing up all of the information available, he was satisfied the grounds for cancelling the applicant’s visa outweighed the reasons for not cancelling.[52] It was also noted that as the applicant’s visa had been cancelled any family members who held a visas because there are members of the family unit would have their visas automatically cancelled.[53]

    [46] Tribunal fil, folio 2 – 7.

    [47] Tribunal file, folio 6 and 4 (back).

    [48] Tribunal file, 4 (back).

    [49] Tribunal file, folio 6 and 4 (back).

    [50] Tribunal file, 4 (back).

    [51] Ibid.

    [52] Tribunal file, folio 2 (back).

    [53] Tribunal file, folio 6 and 2.

    14.While the role of the Tribunal on review is to consider the matter afresh based on the material before it,[54] it is useful in explaining the Tribunal’s decision, to outline the delegate’s findings and reasons on the exercise of the discretion:

    (1)The applicant’s travel to and stay in Australia was for the purpose of working for an approved sponsor in a skilled occupation for which he was specifically nominated to work.[55] As the applicant ceased to hold registration as a medical practitioner in Australia on 14 October 2016 and his name was removed from the public register, he was no longer in Australia in accordance with the original purpose of the visa. The applicant’s visa required him to hold registration that is mandatory to perform the occupation nominated in his visa, specifically as a medical practitioner, and he cease to hold that registration had not regained the required registration. The delegate gave little weight to this consideration as a reason not to cancel.[56]

    (2)The delegate noted that it was condition of the applicant’s visa that he hold the necessary registration to perform the occupation nominated.[57] This registration had ceased on 14 October 2016 and had not been regained despite three months having passed.[58] The delegate considered that the extent of the applicant’s non-compliance was significant.[59] The delegate gave this consideration little weight for not cancelling the applicant’s visa.[60]

    (3)The delegate acknowledged that there would be some hardship caused should the applicant’s visa be cancelled and he be required to depart Australia.[61] However, the delegate noted that the applicant could apply for Bridging Visa E which would allow him to lawfully remain in Australia to ‘finalise outstanding matters’.[62] The delegate noted that the applicant would be subject to s.48 of the Act, which means he would have limited options if applying for further visas in Australia, and that on cancellation of his visa the applicant would be an unlawful non-citizen and liable to detention and removal: ss.189 and 198 of the Act.[63] The delegate gave some weight to the hardship the applicant would face as a consideration for not cancelling his visa.

    (4)In considering the circumstances in which the ground for cancellation arose, the delegate noted that the applicant made a number of claims about ‘adverse deceptive and illegal actions on the part of his sponsor’ which culminated in the events which is said to give rise to the cessation of his medical registration.[64] The delegate found that there were there was insufficient evidence provided by the applicant about the alleged adverse action by the sponsor to support the applicant’s claims.[65] The delegate also noted that there was no attempt by the applicant to lodge a dispute or grievance with an independent third party (such as the Fair Work Commission) to resolve the issues.[66] The delegate further noted that the applicant’s claim did ‘not explain or provide a mitigating basis for his breach of the requirements of his visa.’[67] The delegate therefore placed little weight on this claim.[68]

    (5)In response to the issue raised by the applicant that he was in a position to obtain alternative employment, the delegate observed that the applicant would be unable to gain employment when he did not have the required medical registration from AHPRA.[69] The delegate therefore gave this little weight.[70]

    (6)The delegate noted that the applicant’s wife and children would have their visas cancelled but did not comment on the weight that would be given to this consideration.[71]

    (7)The delegate also noted that there was no information to indicate any specific matters of relevance regarding the applicant’s past and present behaviour towards the Department.[72]

    (8)Finally, the delegate stated that the circumstances of this case were not such that would engage Australia’s international obligations.[73]

    [54] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, also referred to in Shi v Migration Agents Registration Authority [2008] HCA 31 at [98] per Hayne and Heydon JJ.

    [55] Tribunal file, folio 4 (back).

    [56] Tribunal file, folio 3.

    [57] Ibid.

    [58] Ibid.

    [59] Ibid.

    [60] Ibid.

    [61] Ibid.

    [62] Ibid.

    [63] Ibid.

    [64] Tribunal file, folio 3 (back).

    [65] Ibid.

    [66] Ibid.

    [67] Ibid.

    [68] Ibid.

    [69] Tribunal file, folios 2 – 3 (back).

    [70] Tribunal file, folio 2.

    [71] Tribunal file, folio 2; Migration Act 1958 (Cth), s.140.

    [72] Tribunal file, folio 2.

    [73] Tribunal file, folio 2 (back).

1. The applicant applied to the Tribunal for a review of the decision on 25 January 2018. A copy of the delegate’s decision was provided to the Tribunal with the application for review.

   PROCEDURAL ISSUES

2. It is clear from the applicant’s response to the notice of intention to consider cancellation and the correspondence from AHPRA referred to in the delegate’s decision, that there is no dispute that the applicant failed to comply with the conditions of his visa because he was not registered with AHPRA at the relevant time. The thrust of the applicant’s response is that his sponsor had treated him badly, he had been put in a position where his registration was not renewed and he had prospects of having his registration renewed and finding a new sponsor. The applicant also identified the possibility of obtaining a new position as a medical administrator/medical director.

3. The Department file included a complaint by Dr Aziz about the applicant to the effect that he was being investigated. This was not provided to the applicant by the delegate at the time the notice of intention to consider cancellation was issued. I examined this material and formed the view that the issues raised by Dr Aziz, and the claims by the applicant regarding his sponsor in his response to the notice, revealed that there was a significant contest in respect of issues raised by the applicant about the circumstances giving rise to of the non-compliance with the conditions attached to his visa. I did not give the contents of this complaint any weight and instead decided to summons material from AHPRA about the applicant’s registration and any investigations it was undertaking under s.363(3)(b) of the Act to form a view based on authoritative material.

4. AHPRA provided documents pursuant to the summons and sought confidentiality orders under s.35 of the Administrative Appeals Tribunal Act 1975 (AAT Act) in respect of certain information contained in the documents produced. Section 35 does not apply to cases heard in the Migration and Refugee Division by reason of s.24Z of the AAT Act. The Tribunal released the documents produced under the summons to the applicant under s.362A of the Act, even though there was no request for access to documents. The names of third parties and information that may tend to identify third parties contained in those documents were redacted in accordance the Tribunal’s obligations under the Privacy Act 1988.

5. On 9 July 2018, the Tribunal wrote to the applicant under s.359A of the Act inviting the applicant to comment or respond on certain adverse information.[74] The adverse information was information that arose from material produced in response to a summons issued to the AHPRA and in correspondence on behalf of the agency relating to the summons. The applicant, who is represented by a migration agent, was given the opportunity to provide written comments or a response by 5:00 pm on 23 July 2018.

   [74] Tribunal file, folios 189 – 193.

6. In summary, the adverse information included, amongst other things, the following:

   (1)The applicant was the subject of a number of notifications made under the National Law, which were received by AHPRA on behalf of the Medical Board of Australia (the Board). The details of the notifications are as follows:

   (i)a notification dated 26 April 2016 regarding the applicant’s alleged ‘sub-optimal patient management’. [75] After considering the applicant’s response, the Board decided not to take immediate action at that time in part because the applicant ‘had the requisite qualifications, training and experience to perform major cosmetic surgery’[76];

   [75] Tribunal file, folio 191 (back) at (1)(a).

   [76] Ibid.

   (ii)a notification dated 4 August 2016 concerning the applicant’s performance which was made by Dr Aziz;[77]

   [77] Tribunal file, folio 191 (back) at (1)(b).

   (iii)a confidential notification dated 26 July 2016 in respect of a procedure that the applicant had performed.[78] The Board decided to conduct an investigation into the applicant’s performance to determine whether it was of a lesser standard than reasonably expected;[79] and

   [78] Tribunal file, folio 191 (back) at (1)(c).

   [79] Ibid.

   (iv)a confidential notification dated 28 April 2017.[80] The Board took no further action on the basis that the applicant was no longer registered at the time and accordingly, the risk pose to the public was being adequately managed.[81]

   [80] Tribunal file, folio 191 (back) at (1)(d).

   [81] Ibid.

   (2)On 19 August 2016, the applicant was notified that the Board was considering taking immediate action to suspend his registration.[82] In particular, the Board considered that:

   [82] Tribunal file, folio 191 (back) at (2).

   (i)the applicant had engaged in a pattern of serious conduct, which may constitute criminal conduct. [83] In particular, the applicant allegedly provided forged qualifications (i.e. Master of Surgery (General Surgery) from the Academy of Medicine Malaysia (AMM), University Putra Malaysia) and two forged letters from the Malaysian Medical Council attesting to his good standing and evidencing an internship. The applicant also produced an allegedly fraudulent email from the AMM in an attempt to obtain employment as a medical practitioner;

   [83] Tribunal file, folio 190 at (2)(b)(i).

   (ii)the applicant had deceived employers, regulators and patients about his medical qualifications and documents attesting to his good standing as a medical practitioner; [84]

   [84] Tribunal file, folio 190 at (2)(b)(ii).

   (iii)the applicant had performed procedures likely to be beyond his ‘training and scope of practice, placing patients under his care at serious risk of harm’;[85]

   [85] Tribunal file, folio 190 at (2)(b)(iii).

   (iv)his disregard for ‘regulatory [sic] and pattern of fraudulent conduct’ presented a ‘serious risk to the public in the form of practising medicine without appropriate safeguards in place to protect public health and safety’.[86]

   [86] Tribunal file, folio 190 at (2)(b)(iv).

   (v)a suspension would alter the public to the danger posed by the applicant in circumstances where his employer does not make appropriate enquiries in relation to his registration status.[87]

   [87] Tribunal file, folio 190 (back) at (2)(b)(v).

   (vi)the applicant’s registration was improperly obtained.[88]

   [88] Tribunal file, folio 190 (back) at (2)(c).

   (3)On 19 August 2016, the applicant’s registration was suspended on the basis that he posed a ‘serious risk to persons’ and it was ‘necessary to take immediate action to protect the public health or safety’: refer ss.156(1)(a) and 156(1)(c) of the schedule to the National Law.[89] The Board referred the matter for investigation.[90]

   (4)On 2 September 2016, AHPRA notified the applicant that the Registration Committee of the Victorian Board of the Medical Board of Australia (the Committee) had:

   (i)decided to rescind the decision of 4 August 2016 which required the applicant to ‘seek alternative supervision arrangements’; and

   (ii)proposed ‘to refuse [the applicant’s] application for renewal of limited registration and change in circumstances’: refer ss. 112(2)(a) and 82(1)(c)(i)(C) of the schedule to the National law.

   (5)On 14 October 2016, the Committee decided to refuse the applicant’s application for renewal of limited registration for post graduate training or supervised practice as a medical practitioner.[91] Accordingly, the applicant no longer held registration as a medical practitioner and his name was removed from the register of health practitioners with effect from 14 October 2016.[92]

   (6)As at 6 April 2018, the applicant was the subject of nine ongoing investigations by AHPRA. [93]

   (7)The applicant was convicted of four breaches of s.116(1)(c) of the schedule to the National Law, which provides that a person who is not a registered health practitioner must not knowingly or recklessly claim to be registered or hold himself out as being registered.

   [89] Tribunal file, folio 190 (back) at (3) and (4)(d).

   [90] Tribunal file, folio 190 (back) at (3)

   [91] Tribunal file, folio 190 (back) at (4)(c).

   [92] Ibid.

   [93] Tribunal file, folios 191 and 190 (back) at (4)(f).

7. Relevantly, the invitation noted that if the Tribunal did not receive a response within the period allowed or as extended, the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal at a hearing.[94]

   [94] Tribunal file, folio 189.

8. By letter dated 11 July 2018, the applicant was invited to appear before the Tribunal on 7 August 2018 to give evidence and present arguments in relation to the issues arising in his case.[95] The letter noted that failure to provide a response to the invitation to comment on adverse information would result in a loss of the entitlement to appear before the Tribunal for a hearing.[96]

   [95] Tribunal file, folios 201 – 209.

   [96] Tribunal file, folio 209.

9. The applicant did not respond to the invitation under s.359A of the Act. Nor did the applicant seek an extension to respond to the invitation prior to the time nominated for a response to be provided. By reason of s.359C of the Act, if a person is invited in writing under s.359 to give information and does not give that information before the time for giving it has passed, the Tribunal may make a decision on the review without taking any further action to obtain the information. Under s.360 the Act, the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments, although s.360(2) provides that this section does not apply if, relevantly, s.359C(2) applies to the applicant. Subsection 360(3) provides that if any of the paragraphs in s.360(2) of this section apply the applicant is not entitled to appear before the Tribunal. In summary, if the Tribunal invites the applicant o comment or response to adverse information within a certain period of time and the applicant does not do so, the applicant loses the right to a hearing.

10. I am satisfied that the applicant was served with the invitation under s.359A of the Act and the invitation to attend a hearing because an electronic copy of the invitations were sent to the email address of the applicant’s representative which was specified on the application for review form that was lodged with the Tribunal. No error message indicating that the email was not successfully transmitted was received.

11. For completeness, I also note that the applicant’s legal representative advised on 30 August 2018 that she had ceased to act for the applicant on 23 July 2018 but confirmed that the Tribunal’s correspondence had been provided to the applicant.[97] Relevantly, the applicant’s legal representative provided copies of various emails between the representative and the applicants, including copies of the email correspondence that attached the hearing invitation. Accordingly, I am satisfied that the applicant was served with the hearing invitation and letter requesting a response to adverse information.

    [97] Tribunal file, folios 216 – 217.

12. Having regard to these legislative provisions and the failure of the applicant to respond, the applicant was no longer entitled to a hearing and the hearing listed for 7 August 2018 was cancelled.

13. By letter dated 25 July 2018, the applicant was advised of the above and that the Tribunal would proceed to consider his review based on the available material. The applicant was further advised that any information or submissions in support of his application should be made by 4:30 PM on Friday, 10 August 2018. Having undertaken the appropriate searches of the file and the electronic case management system, I am satisfied that no such information or submissions have been provided.

14. While the applicant has returned to Malaysia, he has not withdrawn his application for review. Although the email correspondence provided by the applicant’s former legal representative on 30 August 2018 indicates that the applicant was proposing to withdraw his application for review, he has not done so. Unless and until this happens, the Tribunal is obliged to conduct the review and proceed to make a decision.

15. As observed by the Full Court of the Federal Court in Kim v Minister for Immigration and Citizenship [2008] FCAFC 73, if a cancellation decision is affirmed on review the original decision continues to operate from the date it was made. If the Tribunal sets aside the original decision and substitutes a decision, the new decision operates prospectively: refer Kim at [33] (per Tamberlin J). As such, it is possible the applicant’s visa could be reinstated as a result of the review if his claims were accepted and a decision was made in his favour. The conduct of the review where an applicant leaves Australia is therefore not necessarily a futile exercise.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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)(b). 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?

17. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance, the relevant condition attached to the applicant’s visa was condition 8107(3)(1)(c).

18. As noted, condition 8107(3)(1)(c) required the applicant to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant in the location where his position is situated. The applicant’s nominated occupation was medical practitioner. He was required to hold registration with AHPRA under the National Law. This registration ceased on 14 October 2016 and the application for renewal was refused. The applicant had not regained registration prior to the time at which his visa was cancelled. I therefore find that the applicant had not complied with a condition of his visa at the time of the cancellation and this continued to be the case at the time of cancellation of his visa and at the time of this decision. I also note, for completeness, that the applicant does not meet any of the conditions set out in condition 8107(3A)(a), (aa) or (b) and is therefore not exempt from complying with condition 8107(3).

19. For these reasons, The Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

20. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, in considering whether to exercise its discretion the Tribunal has had regard to the circumstances of this case including, but not limited to, matters raised by the applicant and matters in the Department’s Procedures Advice Manual – PAM3 ‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’. In considering its discretion, the Tribunal also has taken into account the applicant’s response to the notice of intention to consideration.

    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

21. As noted by the delegate, the applicant’s travel and stay in Australia was for the purpose of working for an approved sponsor in a skilled occupation for which he was specifically nominated to work, namely, as a medical practitioner. The applicant’s visa required him to hold registration that is mandatory to perform the occupation nominated in his visa. He ceased to hold registration as a medical practitioner in Australia on 14 October 2016 and his name was removed from the public register. As such, the applicant is not in the position to work as a medical practitioner and he was therefore no longer in Australia in accordance with the original purpose of the visa.

22. I also note that the applicant made a claim he could regain his registration or remain in Australia under a new position. These claims are rejected. First, it is clear from the material produced under summons by AHPRA that the applicant is unlikely to regain registration or to have his registration as a medical practitioner renewed. Secondly, in the absence of an approved or pending business nomination, the applicant is not able to work in an approved occupation. There is no evidence of such an approval or even a pending application.

23. As such, this factor weighs in favour of cancellation of his visa.

    The extent of compliance with visa conditions

24. Under condition 8107(3)(1)(c) of the applicant’s visa, the applicant must hold the licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant, in the location where his position is situated. The applicant’s nominated occupation was medical practitioner. The applicant ceased to hold registration effective 14 October 2016. Accordingly, the applicant has failed to comply with condition 8107(3)(c)(i) and this has been the case since 14 October 2016. This weighs in favour of cancellation.

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

25. The Department guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

26. In the applicant’s response to the notice of intention to consider cancellation, the applicant claimed that the circumstances that gave rise to the cancellation were beyond his control because he was subject to ‘adverse deceptive and illegal actions on the part of his sponsor.’ The applicant says that the sponsor’s actions culminated in the events that gave rise to the cessation of his medical registration.

27. I reject this claim. Based on the material produced by AHPRA under summons, it is clear that the applicant’s application for renewal of his registration was refused on 14 October 2016 because, amongst other things, the Board considered that the applicant had engaged in a pattern of serious conduct which may constitute criminal conduct, including for using forged letters from the Malaysian Medical Council attesting to his good standing and internship, he had performed procedures likely to be beyond his training and scope of practice and his disregard for regulatory issues and his pattern of fraudulent conduct presented a ‘serious risk’ to the public. In correspondence from AHPRA’s legal representatives in respect of the summons, in respect of which the applicant was invited to comment, AHPRA disclosed that the applicant was the subject of nine ongoing investigations. This information provides cogent evidence that the difficulties faced by the applicant in relation to cessation of his medical registration are attributable to his own conduct, rather than the conduct of others.

28. In the applicant’s response to the notice, he states that his family ‘have just managed to settle in and it would be very unfair for them if [the applicant] were to force them to shift again.’[98] In particular, the applicant claims that ‘it would effect [sic] [his] children’s education, physical development, social acceptance & their mental well being [sic].’[99]

    [98] Department file, folio 47.

    [99] Ibid.

29. The visas of the applicant’s family have been cancelled and will remain cancelled by reason of s.140 the Act if the applicant’s visa remains cancelled. Accordingly, the applicant’s family would be required and, in fact have, departed Australia and return to Malaysia. It is accepted that departure from Australia has the potential to cause hardship to the applicant’s family. For instance, it was asserted by the applicant, and we accept that this is the case, that the studies of the applicant’s children have been disrupted. However, with the exception of the applicant’s youngest children, his other children and his wife have lived in Malaysia for many years. It is reasonable to assume that they are not familiar with the culture and way of life.

1. The applicant also states that he has been ‘going through tremendous mental stress’ and is ‘attending a counselling session to help [him] through with this terrible ordeal.’[100] He has ‘gone through financial difficulty’ and has ‘been unable to make payments for [his] BAS, Income tax, electricity bills, water bills, internet bills, car instalment and house rent.’[101] While the Tribunal accepts that the applicant has suffered some degree of hardship, it is apparent from the information provided to the Tribunal by AHPRA that the fact the applicant’s registration as a medical practitioner has ceased and was not renewed and that there have been numerous and ongoing investigations into the applicant is likely to have contributed to the hardship identified by him. In other words, I do not accept that the hardships identified by the applicant have resulted from the cancellation.

   [100] Ibid.

   [101] Ibid.

2. In considering the issue of hardship and the exercise of discretion, it is relevant to consider what would happen if the Tribunal decided not to cancel the applicant’s visa. Relevantly, the decision to cancel the applicant’s visa would be set aside with the consequence that his visa would be reinstated. As such, the applicant and his family would be entitled to return and remain in Australia for the balance of the term of his visa, which would have expired on 4 June 2019 had it not been cancelled. However, the applicant has not been detained and he has voluntarily left Australia with his family. It is therefore difficult to understand how this would be the preferable and appropriate outcome in the circumstances of this case. When provided with the opportunity to respond to the adverse information and attend a hearing, the applicant decided to voluntarily depart Australia. While the applicant has not formally withdrawn his application, his complaint about the hardship caused by having to relocate his family is now mitigated by the applicant having made his decision to leave. As such, any decision not to cancel the applicant’s visa, which would lead to its reinstatement, would be unlikely to resolve the hardships identified by the applicant, which to some degree have already been incurred.

3. Accordingly, this factor does not weigh against cancellation.

   Circumstances in which ground of cancellation arose

4. As noted above, the circumstances in which the ground for cancellation arose raise a number of serious concerns. The applicant did not comply with an important condition on the grant of his visa, he was not in compliance with this condition for an extended period and the purpose of his travel and stay in Australia is no longer valid or warranted. For the reasons previously outlined, it is apparent that the applicant is unlikely to obtain registration and there is no evidence that he would be granted an alternative visa.

5. This factor weighs in favour of cancellation of the applicant’s visa.

   Past and present behaviour of the visa holder towards the Department

6. The applicant has engaged with the Department by responding to notice of intention to consider cancellation. On the other hand, the applicant has not engaged in these proceedings either by responding to the Tribunal’s request to comment on adverse information or to an invitation to provide information in support of his application for review.

7. Further based on the information provided by AHPRA in response to the summons, I find that the claims made by the applicant to the Department in response to the notice were not only unsubstantiated but false, or at the very least, misleading. In particular, the applicant asserted that the reason why his registration had not been renewed was because of the wrongful actions of his former sponsor. It is clear that this was not the case.

8. This factor weighs in favour of cancellation.

   Whether there would be consequential cancellations under s.140

9. As already noted, the visas of the applicant’s family have been cancelled and will remain cancelled by reason of s.140 the Act if the applicant’s visa remains cancelled. The Tribunal accepts the claim made by the applicant in his response to the notice of intention to consider cancellation that his family was well settled and did not wish to leave Australia and return to Malaysia. It should also be noted that, with the exception of the applicant’s youngest children, his other children and his wife have lived in Malaysia for many years.

10. It may have been appropriate to give this factor some weight if the applicant and his family had remained in Australia. However, on balance this factor should be given little weight, particular having regard to the fact that the applicant’s visa would have expired on 4 June 2019 if it had not been cancelled.

    Whether there are mandatory legal consequences

11. If the applicant had remained in Australia, he would have become an unlawful non-citizen and required to depart Australia or would have become liable for detention and removal: ss. 189 and 198 of the Act. However, because the applicant has voluntarily left Australia, this does not apply. The question is whether there are any mandatory legal consequences that would otherwise be mitigated by that the reinstatement of the applicant’s visa.

12. As the applicant’s visa was cancelled under s.116(1)(b), the exclusion period in public interest criterion 4013 does not apply to the applicant. I am also satisfied that the exclusion periods applicable in special return criteria 5001, 5002 and 5010 would not apply to the applicant. The public interest criterion 4014 may be relevant but there is no information available about whether this is the case.

13. Accordingly, this factor does not weigh against cancellation.

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

14. The applicant did not raise in his response, nor have I identified any international obligations that would be breached as a result of the cancellation in the circumstances of this case.

    Conclusions

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

    DECISION

16. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

17. The Tribunal has no jurisdiction with respect to the other applicants.

    Jan Redfern
    Deputy President