Tercero (Migration)

[2018] AATA 1204

Tercero (Migration) [2018] AATA 1204 (26 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Samuel Jr Tercero
Ms Maria Corazon Tercero
Mr Francisco Arturo Tercero
Mr Matthew Tercero

CASE NUMBER:  1622216

DIBP REFERENCE(S):  BCC2016/3147384

MEMBER:R. Skaros

DATE:26 March 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 26 March 2018 at 5:18pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Nominated occupation – Medical Practitioner – AMC clinical examinations and registration status – Multiple AMC examinations – Potential of temporary registration – Hardship to family – Psychological state of applicant

LEGISLATION
Migration Act 1958, ss 116, 140, 348

CASES
MIMA v Zhang (1999) 84 FCR 258
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 December 2016 made by a delegate of the Minister for Immigration 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 applicant was granted a Temporary Business Entry (Subclass 457 visa) on 16 September 2015 to work in the occupation Medical Practitioner (253111) in Australia.

3. The Department received information indicating that the applicant was no longer registered as a medical practitioner with the Australian Health Practitioner Regulation Agency (AHPRA) and that his registration was valid until 15 December 2015. On 31 October 2016 the Department sent the applicant a notice of intention to consider cancellation (the notice) under s.116 of the Act. The notice set out the particulars of the information received indicating that the applicant was no longer registered with APHRA and explained that in the circumstances the visa may be cancelled under s.116(1)(a): fact or circumstance for the grant of the visa no longer exists.

4. The applicant responded to the notice by email. He explained that he had arrived in Australia in 2007 on a Subclass 422 which was valid until 2011. He was granted a Subclass 457 visa on 18 October 2011 which was valid for 4 years. He applied for a further 457 visa which was granted on 16 September 2015, which is the subject of this review, and that during those periods he has been registered with AHPRA. He stated that he was unable to renew his registration on 13 May 2016 as he was unable to pass the clinical test conducted by the Australian Medical Council for full registration.  The applicant provided details of the efforts he has made to pass the AMC clinical examinations, the support he has received from his employer and his family’s circumstances.

5. A number of supporting documents were also provided. Relevantly, this included a letter from AHPRA dated 13 May 2016 regarding the applicant’s application for renewal of his limited registration to fill an area of need as a general practitioner under level 2 supervision. It stated that the regulatory authority determined that the applicant did not meet the eligibility requirements for renewal of his limited registration. The applicant was advised that his name would be removed from the register of medical practitioners on 13 May 2016 and that he must cease all practice as a medical practitioner in Australia from close of business that day. The applicant was advised that he could apply for registration when he passes the AMC clinical examination and becomes eligible to apply for general registration.

6. On 29 November 2016 the Department reissued the notice clarifying the particulars of the information, namely that APHRA had confirmed that he was removed from the register of medical practitioners on 13 May 2016 and that he had, since that date, ceased to hold the required registration to work in the nominated occupation.  The applicant provided a further response indicating, among other things, that he was scheduled to undertake further AMC examinations in February 2017.  

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

8. The applicants were represented in relation to the review by their registered migration agent. A copy of the delegate’s decision record was provided with the application for review.

   Jurisdiction – secondary applicants

9. 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 MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (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.

   Submissions to the Tribunal and requests for extensions of time

10. The applicants appeared before the Tribunal (differently constituted) on 11 April 2017 to give evidence and present arguments. The day prior to that hearing, the Tribunal received written submissions from the representative indicating that the applicant had not passed the AMC clinical examinations but that he had made a booking to sit the next examination on 7 July 2017. The representative submitted that the applicant had over 10 years of experience as a medical practitioner in Australia and that there was a need for doctors in the regional area of Rockhampton, where the applicant was nominated to work as a general practitioner. The representative also provided submissions regarding the circumstances of the applicant’s spouse and children and the difficulties they would experience if the visa was cancelled. Letters of support from the applicant’s nominating employer and members of the community were also provided.

11. At the hearing on 11 April 2017 the Tribunal (differently constituted) discussed the applicant’s request to grant an extension of time to sit the AMC clinical examination which is required for registration. The Tribunal agreed to adjourn the hearing pending the results of the AMC examination on 7 July 2017.

12. The matter was reconstituted to this Tribunal in June 2017. On 25 July 2017, an officer of the Tribunal, on instructions from the member, contacted the representative to enquire about the outcome of the applicant’s AMC examinations and registration status. On 26 July 2017 the representative advised that the applicant had failed the AMC clinical examinations. It was submitted that the applicant was particularly nervous during the examination due to his family’s circumstances and that he has been receiving counselling.

13. On 31 July 2017 the representative provided two letters of support from Doctors Hossain and Mohan attesting to the applicant’s skills as a doctor and referring to the applicant’s stress and anxiety due to his inability to pass the registration test and the uncertainty of his family’s future.

14. Further submissions were provided on 1 August 2017 requesting the Tribunal to consider the review on compassionate grounds. It was submitted that the applicant’s spouse is undertaking administrative work at the Bishops office (Catholic Diocese) in Rockhampton and that she also has a beauty salon to assist the family financially. Submissions were made regarding the status of the children’s studies and their achievements in Australia. It was noted that the applicant’s youngest child, Matthew, is vision impaired and receiving support from Vision Australia. It was submitted that the applicant has been suffering from anxiety and depression and that he has been receiving counselling from Relationships Australia. It was submitted that the circumstances affected the applicant’s ability to pass the Fellowships examinations and the AMC examination. A letter from Relationships Australia indicating that the applicant was receiving professional assistance for depression due to relationship issues and gambling was provided to the Tribunal. It was submitted that while the applicant may not be able to work as a medical practitioner he was willing to work in other paramedical fields in Sydney whilst attempting to pass the AMC clinical examination. It was submitted that the whole family had now settled in Australia and would be a great asset to the Australian community.

15. On 4 August 2017 the Tribunal wrote to the applicant explaining that as he was granted the 457 visa to work in the occupation of medical practitioner, and that it was a condition of his visa that he holds the relevant registration, the Tribunal considered the issue of registration to be an important factor in its considerations. It acknowledged his efforts to pass the examinations and the submissions made by the representative and agreed for the applicant to undertake a further AMC clinical examination for the purposes of registration if he could do so within a reasonable period of time.

16. After ongoing correspondence between the Tribunal and the applicant’s representative, the applicant advised that he has been scheduled to sit the AMC clinical exam test on 20 September 2017. The Tribunal agreed to await the outcome of that examination. During that time the Tribunal also received a letter from the Rev Carlos Mendez from the Life Anglican Church attesting to the applicant’s contribution to the Australian community and supporting their stay in Australia. On 10 October 2017 the representative advised the Tribunal that the applicant had only passed half of the test and was seeking to undertake the other half in due course.

17. The Tribunal invited the applicants to appear before this Tribunal on 31 October 2017 to give evidence and present arguments.

18. The day prior to the hearing the Tribunal received submissions and supporting documents. Relevantly, it included the results of the AMC clinical examination undertaken by the applicant on 20 September 2017 which indicated the outcome was a “retest”. The representative explained that the applicant’s results mean that he has reached the halfway mark and needs to only be retested in the failed components rather than the full examination content. A request was made for the Tribunal to grant a further extension for the applicant to undertake the resit in February 2018. The other documents provided included a letter of support from the Catholic dioceses of Rockhampton regarding the spouse’s employment and a letter of engagement confirming the eldest son’s casual employment with Kmart. Documents relating to the children’s studies and achievements in Australia were also provided. Also provided was a letter from the Director of Cincotta Chemist indicating that the applicant has been working as a casual pharmacy assistant since August 2017.

19. The applicants appeared before the Tribunal on 31 October 2017. At the hearing the Tribunal took evidence from the applicant, the applicant’s spouse and their children Francisco and Matthew. Their evidence has been considered further below. One of the issues that arose at the hearing was whether the Tribunal should afford the applicant a further opportunity to undertake the retest for the components he was not able to pass in the most recent AMC clinical examination. After taking into account all of the evidence provided at the hearing, the Tribunal agreed delay making its decision to allow the applicant to undertake the retest in February 2018. The Tribunal expressed in the strongest terms that given the numerous extensions that had already been granted and the requirements on the Tribunal to conduct the review in an efficient manner it was unlikely to grant any further extensions of time if applicant did not pass the resit AMC examinations to obtain registration. 

20. On 27 February 2018 the representative advised the Tribunal that the applicant did not pass the AMC resit examination undertaken on 10 February 2018. On the same day further submissions were made indicating that the applicant wanted to either appeal the results of his examination or undertake a further test. On 5 March 2018 the representative provided a copy of the applicant’s unsuccessful AMC examination results and advised that the applicant would not be appealing. A request was made for the Tribunal to provide a further opportunity for the applicant to sit the next clinical examinations which will be in May or July 2018.

21. On 12 March 2018 the Tribunal wrote to the applicant’s representative advising that the Tribunal had carefully considered the request for the applicant to undertake a further examination in May or July 2018 but has decided not to grant any further extensions of time and would be proceeding to a decision on the information before it.

22. On 20 March 2018 the representative again wrote to the Tribunal advising that a medical centre in Western Australia has offered the applicant a position. A letter dated 9 March 2018 from the practice manager at Seville Drive/Shoalwater Medical Centre in WA was provided indicating that they would like the opportunity to sponsor the applicant under the 457 visa and supervise him as a level 2 candidate so he can pass the AMC 2 and obtain Fellowship as their clinics have excellent and caring mentors. It was noted in the letter that the applicant currently has his registration under appeal after having been deregistered for failure to complete the AMC Part II exam.

23. The representative also submitted that they had made enquiries with AHPRA to see if there is a possibility for the applicant to be registered, even on a temporary basis, despite failing the AMC 2 examination. A copy of the letter to AHPRA dated 16 March 2018 was provided to the Tribunal. It was submitted that AHPRA advised by phone that when and if the applicant passed the Multiple Choice Questions, he will be eligible to be registered temporarily for 12 months and will be given an opportunity to sit for further examinations for the Level 2 AMC examination. It was advised that they were seeking written confirmation from AHPRA to confirm this. The representative advised that the applicant had previously passed the Multiple Choice Questionnaire (MCQ) and provided a copy of the applicant’s AMC MCQ results for the examination undertaken on 15 June 2013. The representative queried whether the Tribunal would accept new evidence should the applicant obtain temporary registration for 12 months.

24. The Tribunal notes that the applicants were advised, through their representative, on 12 March 2018, that the Tribunal had carefully considered their request for further extensions of time but had decided not to grant any further time and would be proceeding to a decision on the information before it. The Tribunal has considered the subsequent correspondence regarding the applicant having secured employment with a medical centre in WA and that he was pursuing temporary registration with AHPRA. The Tribunal is not satisfied that this information warrants delaying the making of the decision. Firstly, the information does not suggest that the applicant is now eligible to obtain temporary registration from AHPRA to practice as a medical practitioner. While the representative has provided evidence that the applicant had passed the AMC MCQ (part I) examination, the Tribunal notes that this was in June 2013 which was prior to his last period of registration by AHPRA and prior to AHPRA deciding not to renew his registration on 13 May 2016. The Tribunal is not satisfied that the applicant having passed the AMC MCQ in 2013 is probative evidence that he is eligible to obtain temporary registration from AHPRA so he can practice as a medical practitioner in Australia. The letter of support from the WA Medical Centre also does not suggest that the applicant is currently eligible for registration with AHPRA and refers to the applicant having been deregistered due to his inability to pass the AMC clinical exam. To take up employment with the medical centre, even under supervision as a level 2 candidate, the applicant is still required to have at least limited/temporary registration and the Tribunal is not satisfied on the evidence before it that this level of registration is forthcoming.

25. The Tribunal is required to undertake reviews in a fair and efficient manner. The applicant’s visa was cancelled on 16 December 2016, which was some 15 months ago, on the basis that he no longer holds the required registration to practice as a medical practitioner. The Tribunal considers that the issue of whether the applicant holds registration is an important factor in its consideration in this review and for this reason it delayed making its decision to allow the applicant to undertake further AMC examinations. Since the visa was cancelled the applicant has undertaken the AMC clinical examination a number of times but he has not been able to pass the examination to be eligible for registration with AHPRA to practice as a medical practitioner in Australia. The Tribunal is satisfied that it has given the applicant ample opportunity to pass the medical registration examination. The Tribunal acknowledges that the applicant has made enquiries about potentially holding temporary/limited registration again which would enable practice under supervision however the Tribunal has no substantive evidence before the Tribunal to suggest that the applicant’s temporary medical registration is forthcoming.

26. For all of the above reasons, the Tribunal has decided not to delay making its decision on this application for review any further. The Tribunal has decided to proceed to a decision on the information before it.

    Certificate under s.376 of the Act

27. At the hearing the Tribunal brought to the applicant’s attention that the Department had placed a certificate under s.376 of the Act on a number of folios in their file. It explained that the certificate, which includes the reason for why the material should not be disclosed i.e. that it contains information from a third party, provides a discretion for the Tribunal to disclose the information. The Tribunal has doubts about whether the certificate is valid as it does not explain how the disclosure of the information would not be in the public interest. In any case, the Tribunal decided to disclose the information that was relevant to the review to the applicant at the hearing. The Tribunal noted that the folios relevantly included information/allegations received about his registration having been cancelled in December 2015, him not being able to work as a medical practitioner in Australia and that he may be in breach of condition 8107. The Tribunal noted that he had informed the Department that his registration was cancelled in May 2016 and that the notice was reissued to include the correct information. The applicant acknowledged that the information regarding the cancellation of his registration was correct and indicated that he did not dispute this. As the relevant information in the material was consistent with information known to the applicant and about which he informed the Department, it was not necessary to put the information to the applicant using the provisions of s.359A/AA.

28. The Tribunal also notes that the other information contained in the folios included internal Departmental communications and printouts of job reports relating to other persons/cases which were not relevant to the applicant’s case and appear to have been placed on the applicant’s file in error.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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(a). 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?

2. A visa may be cancelled under s.116(1)(a) if the Minister or the Tribunal is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists. Although considering a differently worded version of s.116(1)(a), the reasoning of the Full Federal Court in MIMA v Zhang (1999) 84 FCR 258 provides some guidance. The relevant fact or circumstance that no longer exists is the subject of the ministerial reflection and does not extend to the Minister’s own state of mind, ie satisfaction (per French and North JJ at [54]).

3. The applicant was granted the Subclass 457 visa on the basis of a nomination in the occupation of Medical Practitioner (253111). One of the requirements that had to be satisfied for the grant of the Subclass 457 visa is that if the nominated occupation is a medical practitioner, the applicant’s qualifications are recognised by the relevant authority in Australia for the registration of medical practitioners as entitling the applicant to practice as a medical practitioner: cl.457.223C. Essentially, this required the applicant to hold medical registration from AHPRA (the relevant authority in Australia) to practice as a medical practitioner.  

4. The letter from AHPRA dated 13 May 2016 indicates that the regulatory authority determined that the applicant did not meet the eligibility requirements for renewal of his limited registration. The applicant was advised in the same letter that his name would be removed from the register of medical practitioners on 13 May 2016 and that he must cease all practice as a medical practitioner in Australia from close of business on that date.

5. It is not in dispute that the applicant has been removed from the register of medical practitioners by AHPRA since 13 May 2016. The Tribunal finds on this basis that the applicant ceased to hold the required registration entitling him to practice as a medical practitioner in Australia. As the applicant has ceased to hold the required registration to practice in the nominated occupation of medical practitioner, the Tribunal finds that the fact/circumstance, on which the decision to grant the visa was partly based, no longer exists. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

6. The Tribunal also discussed with the applicant the ground in s.116(1)(b): non-compliance with conditions, which relevantly in his case is condition 8107(3)(c) and requires him to hold the registration (i.e. AHPRA registration) that is mandatory to perform the occupation in which he has been nominated (i.e. medical practitioner). However, it was not necessary to make a finding on this ground given the Tribunal’s finding that the ground of cancellation in s.116(1)(a) has been made out. The issue of compliance with visa conditions has however been considered below as part of the discretion.

   Consideration of discretion

7. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

8. The Tribunal has first considered the purpose of the visa holder’s stay in Australia. The Tribunal considers that the purpose for which the applicant was granted the Subclass 457 visa was to work in the nominated occupation of Medical Practitioner (253111). The applicant has not been able to work as a medical practitioner since 13 May 2016 as the relevant regulatory authority decided not to renew his limited medical registration. Furthermore, the applicant has not been able to pass the required AMC clinical exams or fulfil the Fellowship requirements to be eligible for full registration. Without the relevant registration the applicant would not be able to fulfil the purpose for which the 457 visa was granted.

9. When the above concerns were raised with the applicant at the hearing, he stated that he has not been able to achieve this sooner because of the exam schedule. When asked how many times he had sat the clinical examinations, he stated six times. When asked on what basis he believes he could pass on the seventh attempt given he has not passed the last six, he stated that the upcoming test (in February 2018) was only a retest and that he only needed to do 8 instead of 16 cases. He stated that he feels confident and there were good prospects of him passing the test as he has undertaken some courses and was getting assistance from another doctor.

10. The applicant also stated that he would like to stay in Australia for his family, especially his children. The Tribunal explained to the applicant that he and his family were granted the temporary visas on the basis that he would continue to be eligible to work as a medical practitioner and that he would have been aware that if he could not maintain the relevant registration he would not be able to practice as a doctor and may not be entitled to remain in Australia. 

11. The applicant stated that he would like to practice as a doctor in Australia, he and his family have established themselves in Rockhampton where he has lots of elderly patients who have been asking about him. He stated that Rockhampton is an area which has a need for more doctors.  He stated that he is currently living in Sydney to study for the exam. He is currently working as a pharmacy assistant. His family is living in Rockhampton.

12. The Tribunal has considered the applicant’s evidence and has also had regard to the relevant written submissions and supporting documents. The Tribunal acknowledges that the applicant’s skills as a doctor have been attested to by his colleagues who have worked with him in Rockhampton as indicated by the letters from Doctors Hossain and Mohan. The Tribunal also acknowledges that the applicant and his family have established themselves in Rockhampton, which is a regional area, and that he has patients there. The Tribunal notes however that the applicant will not be able to resume practice as a doctor in Australia without medical registration. Despite being given an opportunity to sit the retest in February 2018, which would have been the applicant’s seventh time to sit the test, he has unfortunately not been able to pass the required AMC clinical examinations to be eligible for full registration.

13. The Tribunal acknowledges that the applicant has recently provided some evidence suggesting that he may be able to obtain limited registration from AHPRA, however, the Tribunal is not satisfied on the evidence before it that this limited registration is forthcoming. The applicant has been without the required registration for a period of over 22 months and has sat the test required for registration on 7 occasions. The Tribunal considers that the applicant has had ample opportunity to obtain the required registration so he can work as a medical practitioner.

14. The 457 visa is granted for a specified purpose and a specified period. In the applicant’s case it is to work as a medical practitioner. Without medical registration the applicant is not able to work the occupation for which he was nominated. He is therefore unable to fulfil the purpose for which the visa was granted. These considerations weigh heavily in favour of cancelling the visa.

15. The Tribunal acknowledges that the applicant is currently working as a pharmacy assistant. The Tribunal has also had regard to the representative’s submissions that the applicant is willing to work in any paramedical field if he is not able to attain registration. The Tribunal gives no weight to these factors because the Tribunal considers that the 457 visa was granted for the purpose of the applicant working as a medical practitioner and it would be inconsistent with the purpose of the 457 visa, and a breach of visa conditions, if the applicant was to work in an occupation other than medical practitioner.    

16. The Tribunal explained to the applicant at the hearing that if the decision to cancel his visa was set aside he would be subject to the conditions of the 457 visa which includes 8107. It noted that this condition requires him to work in the nominated occupation of medical practitioner and without the relevant registration, which is a mandatory requirement, he would not be able to work in that occupation and would again be liable for cancellation for breach of visa conditions. The Tribunal noted that this was a relevant factor in the exercise of its discretion and that if he did not pass the exam to be eligible for registration by the time of the Tribunal’s decision these considerations would weigh in favour of cancellation. As the applicant has not been able to obtain the required registration to date, he will not be able to comply with the conditions of the 457 visa if the cancellation is set aside. These considerations weigh in favour of cancelling the visa. 

17. The Tribunal has next considered the extent of the applicant’s compliance with visa conditions. The applicant’s 457 visa is subject to the mandatory condition 8107 which in part requires the applicant to hold the mandatory registration to work in his nominated occupation of medical practitioner: 8107(3)(c). The applicant ceased to hold the required registration on 13 May 2016 and was in breach of condition 8107 from that date until his visa was cancelled on 19 December 2016. The Tribunal considers that the period of time over which the applicant was in breach of his visa condition, namely 7 months, to be long time and gives weight to this factor in favour cancelling the visa.

18. The Tribunal has next considered the circumstances in which the ground of cancellation arose. The ground of cancellation arose when AHPRA decided to remove the applicant’s name from the register of medical practitioners on 13 May 2016 and he was no longer entitled to practice as a medical practitioner in Australia. In his response to the notice, the applicant explained that he was unable to renew his registration because he did not pass the relevant AMC clinical examinations to obtain full registration. He indicated that AHPRA had advised him that he could renew his temporary registration on two more occasions as advised in their letter dated 13 July 2015. He also detailed a number of personal issues in 2015, including having to travel to the United States to care for his parents who had serious illnesses, with his father passing away in October 2015, which he indicated had significantly affected his performance in the examination.

19. The Tribunal accepts that AHPRA advised the applicant that he could renew his registration on two more occasions however he has not been able to achieve this as AHPRA refused to renew the registration on 13 May 2016. The Tribunal acknowledges the reasons given by the applicant regarding the circumstances which led to him not being able to renew his medical registration, including him not being able to pass the relevant examinations, and accepts that it may have been due to stressful personal circumstances at that time. The Tribunal notes however the applicant has since sat the relevant examinations on numerous occasions but has still not been able to pass.

20. At the hearing the applicant stated that it has been difficult for him to pass the examination because in the Philippines the system is closer to the US system. He stated that there was a lot of pressure on him and it came as a shock when his registration was cancelled. He stated that he has experienced pressure and anxiety. The Tribunal has had regard to the applicant’s evidence and has also had regard to the relevant written submissions and supporting documents, including from his fellow doctors and from Relationships Australia, indicating the applicant has experienced anxiety, pressure and depression which appears to have contributed to him not being able to pass the relevant examination for medical registration.

21. While the Tribunal gives some weight to the circumstances in which the ground of cancellation arose in favour of the applicant, it has also considered this factor against the other circumstances, including the applicant’s inability, up to the present time, to pass the examinations required for medical registration in Australia.

22. The Tribunal has next considered the degree of hardship that may be caused if the visa is cancelled. The Tribunal acknowledges that cancellation of the applicant’s visa will result in the consequential cancellation of his spouse and his children’s visas under s140 of the Act.

23. The Tribunal has had regard to the submissions made by the representative that the cancellation would cause considerable hardship for all members of the family, including the applicant’s spouse who is working part-time and the children who are pursuing studies in Australia. The Tribunal noted at the hearing on 31 October 2017 that the children would be nearing completion of the 2017 academic year and asked the applicant why he and his family could not return home to the Philippines and re-establish themselves there. In response, the applicant stated that they have no family in the Philippines and that it would be difficult as he would have to get a new job. He stated that the children had embraced the Australian way of life and that if would be difficult for them to start a new life. The Tribunal noted that they would not necessarily be starting out a new life and that they would be re-establishing themselves in their home country.

24. The applicant stated that as a medical practitioner in the Philippines it will be difficult to get back into mainstream medicine because of tough competition. He stated that his wife is a flight attendant and that it would be difficult for her to re-establish herself in that job. He stated that it would also be difficult for the children who are established in Australia. He stated that his and his spouse’s families live in the US and they have no close family in the Philippines. 

25. In her evidence to the Tribunal, the applicant’s spouse also expressed the difficulties she and the family would experience if their visas were cancelled and they had to depart Australia. She stated that she currently works as an administrative assistant at the Bishop’s office in Rockhampton. She has also maintained a small registered business providing beauty services. She stated that she has been trying to financially support the family since her husband lost his medical registration. She was studying psychology but stopped to provide for her eldest son, Francisco, so he could undertake studies at university. She explained that Francis had to cease his studies due to the family’s financial difficulties. Francisco has completed the first semester of his qualification in security studies and achieved distinctions and high distinction grades. She stated that her second son, Matthew, was continuing studies at school. Matthew has partial impairment in one of his eyes but has been able to live a very normal life in Australia. She is concerned that he will not have the support, assistance or opportunities in the Philippines that he has had in Australia.  She stated that Matthew is involved in sport and achieving well at school. They have a house in Rockhampton but have not been able to sell it.  The children have been very supportive.  She and the applicant have had marital issues and have been getting relationship counselling. The family has been through a lot. She stated that a number of family members have passed away and that this had placed an enormous amount of pressure on the applicant who has been experiencing depression.

26. At the hearing, the applicant’s eldest son, Francisco, requested the Tribunal give their father a further opportunity to pass the medical examination in February 2018. He stated that the circumstances have been difficult for their family. His father lost his job and he had to stop his tertiary education as they decided to direct the funds to the education of his brother so he can complete secondary education. He currently has a part time job and would like to resume his studies at University.

27. The youngest son, Matthew, told the Tribunal that he would like to stay in Australia so he can keep studying and continue getting high grades.

28. The Tribunal accepts that the applicant and his family have been in Australia for over 10 years and that in that time they have settled in regional Australia, including purchasing a home in Rockhampton, where they have integrated well into the Australian community. The Tribunal also accepts that the applicant’s spouse and eldest son Francis are currently working part-time so as to financially support the family. The Tribunal also accepts that Francisco is a high achieving student and acknowledges that if the visa is cancelled he may not be able to complete his tertiary education in Australia. The Tribunal also accepts that Matthew has a high quality of life in Australia despite being vision impaired in one eye and acknowledges the evidence that he may not receive the same level of support in the Philippines. The Tribunal has had regard to all of the letters of support provided confirming the applicant and his family’s integration and contribution to the Australian community. The Tribunal accepts that if the visa is cancelled and the applicant, his spouse and their children have to depart Australia, they are likely to experience some financial, emotional and psychological hardship. The Tribunal gives some weight to the hardship that may be experienced in the applicant’s favour.

29. The Tribunal also acknowledges and accepts, on the basis of the supporting written and oral evidence, that the applicant has experienced pressure, depression and anxiety, and gives some weight to the applicant’s emotional and psychological state in the exercise of its discretion.   

30. The Tribunal also accepts that the applicant may experience some difficulties re-entering the medical profession in the Philippines for the reasons he has given. The Tribunal notes however that the Philippines is where the applicant has studied and trained as a doctor and is where his qualifications are recognised for practice in the medical profession. The Tribunal considers that the hardship the applicant may experience re-entering the medical profession in the Philippines will not be alleviated if the visa is not cancelled as he is also unable to practice as a medical practitioner in Australia. The Tribunal acknowledges that the applicant is currently employed as a pharmacy assistant however this employment is not consistent with the purpose for which the 457 visa was given, which is to work in the skilled profession of medical practitioner.

31. The Tribunal acknowledges the hardship the applicant and his family members may experience if the visa is cancelled and they have to return to their home country, particularly as they do not have close family left in the Philippines, the Tribunal notes however that the cancellation will not result in the family unit being separated and they will have each other for support and comfort during the initial adjustment period.

1. The Tribunal has also considered the applicant’s past and present conduct towards the department and accepts that the applicant has been co-operative in his dealings with the Department.

2. The Tribunal has next considered the mandatory legal consequences of the cancellation and whether indefinite detention is a possible consequence of cancellation. The Tribunal accepts that if the visa is cancelled the applicant and members of his family will be affected by s.48 of the Migration Act and will have limited options for making a valid visa application in Australia without the intervention of the Minister. The applicant and members of his family currently hold bridging E visas. They will not have to depart Australia immediately upon cancellation and can apply for further bridging E visas to arrange their departure. They will only be subject to detention if they do not continue to hold visas to remain lawfully in Australia or refuse to depart Australia voluntarily. Indefinite detention is therefore not a necessary consequence of the visa cancellation. The Tribunal gives limited weight to the mandatory consequences of the cancellation in favour of the applicant.

3. The Tribunal has also considered whether international obligations would be breached as a result of the cancellation. Of relevance in this case is the Convention on the Rights of the Child (CRC) and the Tribunal acknowledges that in taking actions concerning children who are under the age of 18, the best interest of the child shall be a primary consideration. The applicant’s youngest son, Matthew, is under 18 years of age. The Tribunal considers that it is in Matthew’s best interest to be with his parents.  The Tribunal notes that the cancellation of the applicant’s visa would result in the consequential cancellation of his spouse and the children’s visas. Consequently, all members of the family will have the same visa status and the cancellation will not result in the child being separated from his parents or from his older brother.

4. The Tribunal has considered the effect of the cancellation on Matthew, and on Francis even though he is now above 18 years of age, as detailed above, and acknowledges that they may experience some hardship and adjustment difficulties if they have to depart Australia, however, Matthew and Francisco will have the support of their parents and the family unit will remain intact.

5. The Tribunal is satisfied that Australia’s international obligations will not be breached as a result of the cancellation.

   Overall considerations

6. The Tribunal has had regard to the all of the relevant evidence before it and has carefully weighed up all of the relevant circumstances. The Tribunal acknowledges the hardship that the applicant and members of his family are likely to experience if the visa is cancelled given they have resided in Australia for such a long period of time and have become accustomed to the Australian way of life. The Tribunal has also given weight to the applicant’s psychological state and has accepted that he has experienced depression, stress and pressure for which he has been receiving professional assistance. The Tribunal also acknowledged the difficult personal circumstances experienced by the applicant around the time he was trying to renew his medical registration.

7. While the above factors weigh against cancelling the visa, the Tribunal has considered them in context of the purpose of the 457 visa. The 457 visa is a temporary work visa granted for a specified period to enable to the visa holder to work in an approved occupation. The relevant regulatory authority, AHPRA, decided not to renew the applicant’s limited/temporary medical registration which led to him not being able to practice in his nominated occupation of medical practitioner since 13 May 2016 and he has since not been able to pass the examinations required for registration as a medical practitioner in Australia. The conditions of the 457 visa require the applicant to work in his nominated occupation of medical practitioner and to hold the relevant registration. The applicant does not hold the required medical registration and will therefore not be able to comply with the conditions of the 457 visa.

8. Having considered and weighed all of the relevant circumstances in this case, the Tribunal considers that the circumstances for not cancelling the visa are outweighed by the circumstances for cancelling the 457 temporary work visa. The Tribunal accordingly concludes that the visa should be cancelled.

   DECISION

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

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

    R. Skaros
    Member