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.

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).
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.
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.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
BACKGROUND
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).
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).
The grant of the applicant’s visa was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 3354
Decision Date: 6 September 2018

CaseChat Overview and Summary

This matter concerned the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa granted to Mr Mohamad Anwar, a medical practitioner. The cancellation was initiated by the Minister under section 116(1)(b) of the *Migration Act 1958* (Cth) on the grounds that Mr Anwar had ceased to hold the mandatory registration required to practice medicine in Australia and had been removed from the public register. Mr Anwar's wife and four children were also granted visas as his family members. The Tribunal was asked to determine whether the power to cancel the visa should be exercised.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the *Migration Act 1958* was established, and if so, whether the discretion to cancel the visa should be exercised. This involved assessing whether Mr Anwar had complied with condition 8107(3)(c)(i) of his visa, which mandated that he hold the necessary registration to perform his nominated occupation. The Tribunal also considered various factors relevant to the exercise of discretion, including the extent of compliance with visa conditions, the degree of hardship to Mr Anwar and his family, the legal consequences of cancellation, Mr Anwar's behaviour towards the Department, the circumstances leading to the ground for cancellation, and the purpose of his travel and stay in Australia.

The Tribunal found that the ground for cancellation was established because Mr Anwar had indeed ceased to hold registration as a medical practitioner in Australia on 14 October 2016, thereby failing to comply with visa condition 8107(3)(c)(i). In considering the exercise of discretion, the Tribunal noted that Mr Anwar's inability to practice medicine meant he was no longer in Australia for the original purpose of his visa. While acknowledging the hardship Mr Anwar claimed, the Tribunal rejected his assertions that he was likely to regain registration or remain in Australia under a new position, finding no evidence of an approved or pending nomination for alternative employment. The Tribunal also considered that the circumstances leading to the ground for cancellation were not entirely beyond Mr Anwar's control, as the Department's guidelines suggest a visa should not be cancelled if the circumstances were beyond the visa holder's control.

Ultimately, the Tribunal affirmed the decision to cancel Mr Mohamad Anwar's Subclass 457 visa. The Tribunal stated it had no jurisdiction with respect to the other applicants, who were family members.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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 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? 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). 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). 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 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

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.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.Jan RedfernDeputy President

Ratio Decidendi

Legal Principle Established

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 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 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. 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. As such, this factor weighs in favour of cancellation of his visa.The extent of compliance with visa conditions 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) 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.