1810686 (Migration)

1810686 (Migration) [2021] AATA 518 (12 March 2021)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1810686
MEMBER:Deputy President J.L Redfern PSM
DATE OF DECISION:  12 March 2021
DATE CORRIGENDUM
SIGNED:15 July 2021
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

In paragraph 21, “cl.602.215(6)” should be replaced with “cl.602.212(6)”, so that the decision reads as follows:

“21. Clause 602.215 requires that unless the applicant is unfit to depart Australia under cl.602.212(6), the applicant must genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted…”

J.L Redfern PSM
Deputy President

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1810686
MEMBER:Deputy President J.L Redfern PSM
DATE:12 March 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the criteria in clauses 602.211, 602.212(2), 602.214, 602.215 and 602.216 of Schedule 2 to the Migration Regulations 1994 for a Subclass 602 visa.

Statement made on 12 March 2021 at 12:25 PM
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) (Subclass 602) visa – whether applicant has a genuine intention to remain in Australia temporarily for medical treatment or related purposes – new medical treatment proposed after the application was lodged but before the decision – applicant sustained a work place injury – costs of treatment approved by workers compensation scheme – decision under review remit with direction.
LEGISLATION
Migration Act 1958 (Cth), ss.65, and 360
Migration Regulations 1994 (Cth), Schedule 1 item 1214A(3)(e), Schedule 2 cls.602, 602.211, 602.212, 602.213, 602.214, 602.215 and 602.216
SECONDARY MATERIALS
Department of Home Affairs, Procedural Instruction, Sch2 Visa602-Medical Treatment
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 April 2018 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (the Act).
The applicant is a citizen of Malaysia and was born in 1992. By application dated 20 March 2018 the applicant applied for a Medical Treatment visa. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The Subclass 602 Medical Treatment visa is for persons seeking to remain in Australia temporarily for medical treatment or related purposes. The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The medical treatment particularised in the application was for depression.
The delegate refused to grant the applicant the visa because he was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purposes of obtaining medical treatment or for related purposes. This is one of the criterion for a Medical Treatment visa. The applicant applied to the Tribunal for review of the decision on 16 April 2018.
By letter dated 4 September 2020, the applicant was requested to provide additional information in relation to his application for review. He was advised that the Tribunal would also consider whether the applicant met other relevant criteria in the Regulations in relation to the proposed medical treatment and further information was requested in relation to these matters. Information was requested from the applicant’s treating doctor about the claimed medical treatment and this was provided, together with further information and submissions from the applicant’s representative, prior to the hearing.
The applicant was invited to attend a hearing on 5 November 2020. He was represented by his migration agent, Ms Larisa Stoian, and the hearing was conducted with the assistance of an interpreter in the Malay language. I found the material and submissions provided by the applicant’s representative in support of the applicant’s claims to be of considerable assistance. They not only focussed on all relevant criteria but included cogent documentary evidence, such as medical reports and correspondence directly from the source as evidence of the matters that were sought to be established.
On the morning of the hearing, the applicant’s representative provided further legal submissions. It became apparent that the applicant was undertaking medical treatment, although not the treatment originally particularised in his application, and he was scheduled to undergo an operation and specialist review in the weeks following the hearing. The medical treatment related to an injury sustained by the applicant while working in Australia, for which he is receiving rehabilitation and surgical intervention through the statutory workers compensation scheme administered by WorkCover South Australia. According to documentary evidence provided before the hearing, the proposed medical treatment includes reconstructive surgery to repair the applicant’s left index finger, which had been partially severed, and ongoing physiotherapy.
The applicant did not undergo the medical treatment sought in the original application. This is not in dispute. It is submitted that even though the applicant is now seeking a different medical treatment under the existing application, he is entitled to do so and the Tribunal should consider whether the applicant meets the relevant criteria at the time of the decision, not at some earlier point of time.
For the reasons later outlined, I accept this submission.
The hearing was adjourned to 3 February 2021 to allow the proposed medical procedure to be finalised so that an assessment could be made about whether further medical treatment would be required. At the resumed hearing, the applicant gave evidence and provided further documentary evidence in support of his claims.
Based on this evidence and the submissions made by the applicant’s representative, I have decided that the matter should be remitted for reconsideration. My reasons follow.
RELEVANT LAW
The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. Part 602, specifically cl.602.2 of Schedule 2 to the Regulations, sets out the primary criteria that must be satisfied by the applicant at the time of decision.
Clause 602.211 requires that the visa applicant must seek to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.
While the delegate found that the applicant did not meet the criterion relating to whether he was genuinely intending to stay temporarily in Australia for the purpose for which the visa would be granted, there are other criteria which must be met that fall for consideration. As such, it is apt to outline the criteria in cl.602 of Schedule 2 to the Regulations to identify the determinative issues in this case. Relevantly, all criteria must be satisfied at the time a decision is made on the application.
Clause 602.212 of Schedule 2 to the Regulations, as extracted in the attachment to this decision, requires that the applicant meet one of the seven alternative sub criteria in cls.602.212(2)-(8).
Clause 602.212(2) sets out the criteria for the proposed medical treatment. All criteria must be met. Relevant to the circumstances of this case, cl 602.212(2) requires that:
·the applicant seeks to obtain medical treatment in Australia (subcl (a));
·the arrangements for treatment have been concluded (subcl (b));
·the applicant is free of a disease or condition that may be a threat to public health or a danger to the Australian community (subcl (d));
·arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded (subcl (e)); and
·payment of such costs will not be a charge on a government or public authority in Australia, or there is evidence that the relevant government authority has approved payment (subcl (f)).
The criteria set out in cls.602.212(3)-(5) relate to the circumstances when the applicant is an organ donor, a support person for another applicant seeking medical treatment or a citizen from the Western Province of Papua New Guinea. None of these provisions apply to the applicant.
The criteria in cl.602.212(6) apply in respect of an applicant who has turned 50, is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth, has applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criterion but has been refused the visa. The applicant was born in 1992 and is 28 years old. As such, subclause (6) does not apply.
Clauses 602.212(7) and (8) apply where an applicant meets the nominated criteria in subclauses (2)−(6) but does not meet all relevant criteria in circumstances where there is financial hardship or where there are compelling reasons why the visa should be granted. These provisions do not fall for determination unless I am satisfied that the applicant meets cls.602.212(2)(a) to (c) of Schedule 2 of the Regulations.
Broadly speaking, cl.602.213 applies if the applicant holds a substantive temporary visa at the time of the application. The applicant is not medically unfit to depart Australia and did not hold a substantive temporary visa at the time of his application for the Medical Treatment visa and as such this provision is not relevant.
Clause 602.214 requires that no Australian citizen or permanent resident would be disadvantaged in obtaining medical treatment or consultation if the visa was granted.
Clause 602.215 requires that unless the applicant is unfit to depart Australia under cl.602.215(6), the applicant must genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted. The applicant’s representative concedes that cl.602.212(6) does not apply and, as such, the applicant must meet the criteria in cl.602.215. The Tribunal must have regard to whether the applicant has complied substantially with the conditions of the last held substantive visa or any subsequent bridging visa, whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject and any other “relevant matter” (cl.602.215 (1)(a) to (c) of the Regulations).
Clause 602.216 requires the applicant to have adequate means, or access to adequate means, to support himself or herself during the period of the intended stay in Australia. This requirement will not apply if the applicant is medically unfit to depart Australia as described in cl 602.212(6).
There are also requirements about the public interest criteria in Schedule 4 and the special return criteria in Schedule 5. This was not considered by the delegate and there is no material before me relating to these matters. I have therefore not considered these criteria.
BACKGROUND AND OUTLINE OF EVIDENCE
The applicant arrived in Australia as the holder of a subclass 601 visa in January 2016. This is an electronic travel visa which allows non-citizens to stay in Australia for up to 3 months.
The applicant’s visa history is set out in the decision of the delegate and is confirmed by him in his statement dated 2 February 2021. In brief, soon after arriving in Australia, the applicant applied for a protection visa. This was refused by a delegate of the Minister on 26 July 2016. He applied for a review of this decision to the Tribunal, although he says he was “shocked” to find that the claims made on his behalf were fabricated by his then migration agent. The applicant states that he disclosed this to the previous Tribunal at the time of his hearing but nonetheless maintained a claim for protection, based on different grounds These further claims were rejected by the Tribunal and the applicant then applied for judicial review of this decision to the Federal Circuit Court. This application for review was dismissed by order dated 12 February 2018.
The applicant applied for the Medical Treatment visa on 20 March 2018. In his application the applicant identified the medical condition requiring medical treatment as “psychological”. The period nominated for the treatment was from 7 March 2018 to 7 March 2019 and Dr Shaw was identified as his treating practitioner. Accompanying the application was a form dated 7 March 2018 known as “Evidence of intended medical treatment”, being a Form 1507, which was completed by Dr Matthew Shaw. Dr Shaw recorded the medical condition requiring treatment as “Depression”. In response to a request for information made before the first scheduled hearing, Dr Shaw provided information to the Tribunal on 16 September 2020 from which it was apparent that the applicant had not obtained any treatment from Dr Shaw for depression, other than a referral on 7 March 2018 to another provider.
On 29 September 2020, the applicant’s representative provided the Tribunal with an updated Form 1507 completed by Dr Remona Pungutan dated 18 September 2020, a medical report from hand and wrist surgeon, Dr Paul van Minnen, dated 7 September 2020, three letters from Physiotherapist, Kieran O’ Donovan dated 13 March 2019, 21 August and 3 September 2020 and two letters from Dr Remona Pungutan dated 13 July and 18 September 2020 . On 21 October 2020, the representative also provided a letter from Employers Mutual Limited (EML) dated 20 October 2020 and a surgery approval request dated 14 October 2020 from Dr van Minnen’s surgery relating to the applicant.
At the first hearing, the applicant gave evidence that he had sustained a work injury to his index finger, he was being treated by a specialist and was expecting a further consultation with his specialist in coming weeks. I therefore decided to adjourn the matter until 3 February 2021 in anticipation that further evidence about the applicant’s prognosis would be available by this time.
The applicant provided a statutory declaration outlining his previous claims for protection, the status of his WorkCover claim and details about the medical consultations scheduled for the coming months.
In summary, the evidence shows that the applicant sustained a flexor tendon workplace injury in about February 2019 when he lacerated his finger using a knife. The applicant made a claim through the South Australian statutory workers compensation scheme and his claim has since been managed by EML, which is a workers’ compensation insurance service provider for the South Australian WorkCover scheme. There was a delay in the repair of the applicant’s tendon for two months which caused issues with his recovery. The applicant underwent an operation in April 2019 to repair his tendon and then returned to alternative duties. However, there was flexor deformity in his joint and, after extensive hand therapy, the applicant was referred to a specialist for consideration of further surgery in August 2020. Specialist, Dr Paul van Minnen, recommended reconstructive surgery which was undertaken in October 2020. The applicant stated that he had a consultation with his specialist in January 2021 and he was advised he may need to undergo additional surgery, but this would be assessed in April 2021 after the results of ongoing hand therapy could be assessed.
Based on the evidence provided, I am satisfied the applicant is under the care of Dr Paul van Minnen, Dr Remona Pungutan and physiotherapist Erin Cunningham. Ms Cunningham is providing ongoing hand therapy to the applicant. The applicant provided details of his scheduled appointments with Ms Cunningham which shows that he has been regularly attending hand therapy treatment from 9 December 2020 with further appointments scheduled, initially every few weeks and then monthly, until 14 April 2021. I am also satisfied through correspondence addressed to the Tribunal by EML that the applicant’s undergoing medical treatment is financially supported by EML, and that the treatment has been approved under the South Australian ‘Return to work’ program. The applicant is being paid workers’ compensation during the program. He says, and I accept, that he is required to be physically present in Australian order to be given the medical treatment for the rehabilitation of his hand. The applicant states that he is concerned about whether he will be able to receive such treatment in Malaysia, given the difficulties with the pandemic but also because of the terms of the workers’ compensation arrangement in Australia.
The applicant currently holds a bridging visa and has held a bridging visa at all relevant times. The bridging visas held by the applicant allowed him to work, except for a brief period between March and August 2018. As such, it appears that the applicant has been lawfully residing in Australia since his arrival in January 2016 and was able to work at the time he sustained his injury in February 2019.
In his statement, the applicant stated that the nature of the treatment he was now seeking has changed because of his current circumstances. He further states that he has a genuine need for medical treatment and that he is only seeking to remain in Australia temporarily for the purposes of receiving this treatment. Relevantly, the applicant states as follows:
I became a victim of a work accident in Australia and have subsequently suffered injuries due to circumstances outside of my control. My sole priority is now to recover from my injuries and undergo the relevant medical treatment are required to ensure my recovery.
The applicant further states:
I wish to be granted a medical treatment visa solely to allow me to have guaranteed access to the medical support that I require and allow for full recovery prior to my departure from Australia.
In his evidence at the resumed hearing, the applicant said that he was being paid workers compensation and that this was sufficient to cover his costs. He also said that if he was granted a Medical Treatment visa, he believed he would be able to apply for a variation of any condition about not being able to work because he would be part of the ‘Return to work’ program until his recovery. He said that his specialist had told him that the ‘worst case’ scenario would be that he would be in rehabilitation for the next 12 to 18 months from October 2020. He accepted that this would mean that his treatment would be likely to be finished by March 2022 at the latest. I asked the applicant if he would leave Australia once his treatment was finished and return to Malaysia. The applicant said that he would return, although I raised several concerns with him to test this evidence.
Firstly, I raised concerns about the fact that the applicant was on a temporary visa when he arrived in Australia but had remained in Australia from the time of his arrival, making several applications for that were either refused by the Tribunal or rejected by the Federal Circuit Court. The applicant said that he should not have applied for a protection visa in 2016 and when he was asked why he did not leave when the application was refused in July 2016, he said that he did not understand the process and was advised that he should seek a review of the decision to the Tribunal. On the issue of why he did not leave Australia once his review was rejected by the Tribunal, the applicant said that a lawyer advised him to make an application to appeal to the courts, which he did. The case was finalised in February 2018 and the applicant said that he did not leave at that stage because his wife was in Australia and she had a pending application for review of her protection application before the courts.

Secondly, the applicant gave evidence there would be difficulties if he were to return to Malaysia because of his wife’s ongoing appeal. I raised concerns about whether the fact that his wife had an ongoing application before the courts and would remain in Australia until this matter was finalised was an incentive for him to remain in Australia, even if his medical treatment had been concluded. The applicant gave evidence that this was not his intention and that he would leave Australia after his medical treatment, even if it meant that he would be separated from his family. The applicant was pressed on this and his evidence was that this was the case. His evidence was to the effect that he was being truthful about this and he would return to Malaysia even if this would mean he and his family would be separated.
CONSIDERATION OF CLAIMS
Having regard to the material provided and the circumstances in this case, the critical issues are whether the applicant meets the criteria set out in cls.602.211, 602.212(2), 602.214, 602.215 and 602.216 of Schedule 2 to the Regulations.
The medical treatment being sought by the applicant is being provided by WorkCover South Australia under a statutory scheme for workplace injuries. There is no evidence to suggest that an Australian citizen or Australian permanent resident would be disadvantaged in obtaining medical treatment or consultations if the visa is granted. The medical treatment to be provided is from a hand surgeon and physiotherapist. There is no evidence to suggest that this treatment has limited availability or that the service is restricted to such an extent that Australian citizens or Australian permanent residents would be deprived of treatments or consultations. The treatment proposed is for a defined period and is funded by a statutory scheme available to all workers in South Australia. Based on the information available, I am satisfied that no Australian citizen or Australian permanent resident would be disadvantaged in obtaining medical treatment or consultations if the visa is granted. I am therefore satisfied that the applicant meets the criteria in cl.602.214 of Schedule 2 to the Regulations.
The more contentious issues are whether the applicant meets the criteria in cl.602.211, 602.212(2), 602.215 and 602.216 of Schedule 2 to the Regulations. Applicants for a Medical Treatment visa under subclass 602 must meet all of these criteria at the time a decision is made on the application. Interestingly, there is an overlap between cls.602.211 and 602.212(2) of the Regulations in that the applicant must seek to visit or remain in Australia for the purposes of medical treatment to meet both cls.602.211 and 602.212(2)(a) of Schedule 2 of the Regulations. There is also an overlap between cls.602.211 and 602.215 in that the applicant must seek to stay or remain in Australia temporarily for the purposes of the medical treatment. Accordingly, considering whether the applicant meets the criteria in cls.602.212(2) and 602.215 of Schedule 2 of the Regulations will necessarily deal with the issues that arise in assessing the criteria in cl.602.211 of the Regulations. Similarly, there is some overlap between the criteria in cls.602.212(2)(e) and 602.216 because both require consideration of whether the applicant can meet the costs of his stay in Australia.
Does the applicant meet cl 602.212(2)?
Clause 602.212(2) of Schedule 2 of the Regulations provides that the applicant must seek to stay or remain in Australia to obtain medical treatment, that arrangements have been concluded to carry out the treatment, that arrangements have been concluded for the payment of all costs relating to the treatment and all other expenses of the applicant’s day in Australia and that the payment of those costs will not be a charge on the Commonwealth, State, Territory or public authority in Australia.
The applicant’s representative submits that the applicant satisfies cl.602.212(2) of the Regulations even though the nature of the treatment has changed from the time that the original application was lodged. The applicant’s representative provided an updated Form 1507 from Dr Pungutan together with the medical reports and details about the arrangements that had been made to carry out the treatment. This evidence is referred to in detail earlier in my decision. Ms Stoian submits that the Regulations do not require the nature of the treatment to be restricted to that specified at the time of the application. She contends that cl.602.2 of Schedule 2 to the Regulations provides that the criteria must be satisfied at the time of decision and that cl.602.11 of the Regulations simply states that the applicant must seek to visit or remain in Australia for the purposes of the medical treatment. It is submitted that it is clear that from reading these clauses together that the Regulations do not limit the applicant’s ability to vary the nature of his treatment prior to a decision being made, as long as the applicant is seeking to remain in Australia for the purposes of that medical treatment at the time of the decision.
I accept this submission.
While item 1214A(3)(e) of Schedule 1 to the Regulations provides that an applicant is required to provide a Form 1507 with brief details of their proposed medical treatment in order to make a valid visa application, the criteria for the grant of the visa in Part 602.2 of Schedule 2 does not refer to the treatment that is identified in the Form 1507. The note to Part 602.2 specifies that the primary criteria are to be satisfied at the time a decision is made on the application and the terms of cl.602.212(2) of Schedule 2 to the Regulations, which the applicant claims to meet, only require the applicant to be seeking medical treatment in Australia. Relevantly, cl.602.212 of the Regulations does not refer to the medical treatment that was identified or sought when the visa application was made. As such, if an applicant satisfied the requirement in item 1214A(3)(e) of Schedule 1 by providing a completed Form 1507 and the nature of the medical treatment that he or she is seeking changes before a decision is made on the application, there does not appear to be anything preventing the applicant from satisfying the criteria in Schedule 2 based on different medical treatment that may be required at the time of decision.
In this case, I am satisfied that there is cogent evidence the applicant is seeking to remain in Australia to obtain medical treatment, being possible further reconstructive surgery and rehabilitation for his injured index finger.[1] I am also satisfied that arrangements have been concluded to carry out the treatment in the sense that there is a well-developed plan in place.[2] The applicant will undergo hand therapy for several months, he will be reviewed by the specialist in April 2021 and if another operation is required, this will be undertaken. It is also likely that there will be further hand therapy that will need to be undertaken. It is possible that this treatment will proceed through most of 2021 and that it is likely to be concluded by about March 2022. There is also evidence that arrangements have been concluded for the payment of all costs relating to this treatment and it is clear that EML will make the payment for the treatment. It is also clear that other expenses will be paid through the regular workers compensation weekly payment and this will be sufficient to cover the applicant’s stay in Australia for the duration of the treatment. I am therefore satisfied that the applicant meets the criteria in cls.602.212(2)(e) and 602.216 of Schedule 2 to the Regulations.
[1] Clause 602.212(2)(a)
[2] Clause 602.212(2)(b)
I am also satisfied that these costs will not be a charge on the Commonwealth although I note they will be a cost to South Australia and, in particular, the WorkCover Authority in South Australia. On the material provided to the Tribunal by the applicant’s representative, the medical treatment is financially supported by EML and the treatment has been approved under the South Australian ’Return to work’ program. I am therefore satisfied the applicant meets cl.602.212(2)(f)(ii) of Schedule 2 of the Regulations.
There is no evidence before the Tribunal that the applicant has a disease or condition that is or may result in the applicant being a threat to public health in Australia or a danger to the Australian community. As such, I am satisfied that the applicant meets the criterion in cl.602.212(2)(d) of Schedule 2 to the Regulations.
In summary, I am satisfied that the applicant meets all of the requirements in cl.602.212(2) as well as cl 602.216 of Schedule 2 to the Regulations.
Does the applicant meet cl 602.215?
Clause 602.215 of Schedule 2 of the Regulations sets out the matters that must be considered when determining whether an applicant “genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted”. The Tribunal must have regard to three matters.
First, the Tribunal must have regard to whether the applicant has complied substantially with the conditions to which the last substantive visa or any subsequent bridging visa held by the applicant was subject (cl.602.215(1)(a) of the Regulations). There is no evidence that the applicant has failed to comply substantially with such conditions.
Secondly, the Tribunal must have regard to whether the applicant intends to comply with conditions to which the Subclass 602 visa would be subject (cl.602.215(1)(b) of the Regulations). According to the Department Procedural Instruction,[3] a Medical Treatment visa would usually be subject to conditions 8101 and 8102 (restrictions on work and study or training) and condition 8503 (no further stay condition).[4] There is no evidence that the applicant would breach a condition not to study. In response to the question about whether the applicant would breach any restrictions on work, Ms Stoian said that she would seek a waiver of this condition from the Department in the circumstances of this case, particularly given that the applicant would be required to return to work on restricted duties while undertaking his rehabilitation. I am not able to make an assessment of whether the Department would waive such a condition but accept that the applicant’s representative will apply for a waiver of this condition and I also accept that the applicant intends to comply with it, whatever the outcome.
[3] Department of Home Affairs, Procedural Instruction, Sch2 Visa602-Medical Treatment.
[4] Relevantly under cl. 602.611, these are the only conditions that can be imposed.
A further issue is whether I am satisfied that the applicant intends to comply with condition 8503, in the event that the Department imposes such a condition. Given the history in this matter, there is a high likelihood that such a condition would be imposed. There is overlap between this and the following issue and it is therefore convenient to deal with both issues at the same time.
On the issue of “any other relevant matter” referred to in cl.602.215(1)(c) of the Regulations, the Procedural Instruction notes that a “genuine” visitor is not defined in the Act but that the policy envisages that an applicant should have a genuine intention to leave Australia at the end of the medical treatment plan. In particular, it is noted that a Medical Treatment visa should not be granted to applicants who intend to remain in Australia for a longer period to, for instance, maintain ongoing residence in Australia. This would be, in my view, a “relevant matter” for the purposes of cl.602.215(c) of the Regulations. In this case, the applicant gave sworn evidence that he proposes to leave Australia at the end of the medical treatment. Of concern is that his evidence was initially somewhat equivocal, and his previous actions tend to militate against such a conclusion.
For instance, the applicant first arrived in Australia in 2016, made an application for a protection visa soon after he arrived and when the application was rejected, refused to leave Australia. He sought review and lodged an appeal, even though he agreed that the claims made on his behalf had little substance. Furthermore, the applicant’s family may still be in Australia at the end of his medical treatment, which would be a compelling incentive for him to stay. These matters are factors that would tend to suggest the applicant’s intention may be to pursue a permanent rather than temporary stay. Against this, I accept that there is compelling evidence that the applicant has found himself in a situation where he must remain in Australia to receive medical treatment caused by a work injury. There is no evidence that this was anything other than an accidental work injury where the applicant has sustained a serious injury to his index finger which may leave him permanently damage without appropriate medical intervention. The applicant has given sworn evidence that, even though it would be difficult, he would leave. I accept the applicant as a witness of truth, I accept that his priority in remaining in Australia is to undertake the medical treatment proposed and that he has given the commitment to leave at the end of the medical treatment process. The applicant’s answers were open and, on their face, honest.
In summary, while the applicant’s visa history in Australia raises concerns, I am satisfied on the basis of his sworn evidence that he understands the Medical Treatment visa is temporary and that he has an obligation to leave at the end of the medical treatment. I am also satisfied that it is his intention is to stay temporarily in Australia for the purposes of receiving the treatment.
Accordingly, I am satisfied that the applicant meets the requirements of cl.602.215 of Schedule 2 of the Regulations.
Does the applicant meet cl 602.211?
Given my findings set out above, I am satisfied the applicant meets the criterion in cl.602.211 of Schedule 2 to the Regulations.
DECISION
The Tribunal remits the application for a Medical Treatment (Visitor) (Class UB) visa for reconsideration, with the direction that the applicant meets the criteria in clauses 602.211, 602.212(2), 602.214, 602.215 and 602.216 of Schedule 2 to the Regulations for a Subclass 602 visa.
Jan Redfern PSM
Deputy President

ATTACHMENT
Migration Regulations 1994
Schedule 2
602.211 The applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.
602.212 (1)    The requirements in one of subclauses (2) to (8) are met.
Medical treatment
(2)All of the following requirements are met:
(a)    the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia;
(b)    arrangements have been concluded to carry out the treatment;
(c)     if the treatment is an organ transplant:
(i)the donor of the relevant organ is accompanying the applicant to Australia; or
(ii)all requisite arrangements to effect the donation of the organ have been concluded in Australia;
(d)    the applicant is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;
(e)     arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;
(f)     either:
(i) the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
(ii)evidence is produced that the relevant government authority has approved the payment of those costs.
Organ donor
(3)All of the following requirements are met:
(a)    the applicant seeks to donate an organ for transplant in Australia;
(b)    if the organ recipient is also an applicant, the requirements described in subclause (2) are met in relation to the organ recipient;
(c)     the applicant satisfies public interest criterion 4005;
(d)    arrangements have been concluded for the payment of all costs related to the organ transplant and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;
(e)     either:
(i)the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
(ii)evidence is produced that the relevant government authority has approved the payment of those costs.
Support person
(4)All of the following requirements are met:
(a)    the applicant seeks to give emotional and other support to an applicant in relation to whom:
(i)the requirements described in subclause (2) or (3) are met; or
(ii)the requirements described in subclause 675.212(2) or (3) are met; or
(iii)the requirements described in subclause 685.212(2) or (3) are met;
(b)    the person to whom the applicant is to provide support holds:
(i)a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met; or
(ii)a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) or (3) have been met; or
(iii)a Subclass 685 (Medical Treatment (Long Stay)) visa on the basis that the requirements described in subclause 685.212(2) or (3) have been met;
(c)     the applicant satisfies public interest criterion 4005.
Western Province of Papua New Guinea
(5)All of the following requirements are met:
(a)    the applicant is a citizen of Papua New Guinea;
(b)    the applicant resides in the Western Province of Papua New Guinea;
(c)     the Department of the government of Queensland that is responsible for health has approved the medical evacuation of the applicant to, or treatment of the applicant in, a hospital in Queensland.
Unfit to depart
(6) All of the following requirements are met:
(a)    the applicant is in Australia;
(b)    the applicant has turned 50;
(c)     the applicant has applied for a permanent visa while in Australia;
(d)    the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;
(e)     the applicant has been refused the visa;
(f)     the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.
Financial hardship
(7)All of the following requirements are met:
(a)    one of the following applies:
(i)the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;
(ii)the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;
(iii)the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;
(iv)the requirements described in subclause (5) are met in relation to the applicant;
(v)the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;
(b)    the applicant is in Australia;
(c)     the applicant holds:
(i)a Subclass 602 visa; or
(ii)a Subclass 675 (Medical Treatment (Short Stay)) visa; or
(iii)a Subclass 685 (Medical Treatment (Long Stay)) visa;
(d)    the applicant is suffering financial hardship as a result of changes in the applicant’s circumstances after entering Australia;
(e)     the applicant, or a member of the applicant’s immediate family, is likely to become a charge on the Commonwealth, a State, a Territory or a public authority in Australia;
(f)     the applicant, or a member of the applicant’s immediate family, cannot leave Australia for reasons beyond his or her control;
(g)     the applicant has compelling personal reasons to work in Australia;
(h)    the applicant satisfies public interest criterion 4005.
Compelling personal reasons
(8)All of the following requirements are met:
(a)    one of the following applies:
(i)the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;
(ii)the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;
(iii)the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;
(iv)the requirements described in subclause (5) are met in relation to the applicant;
(v)the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;
(b)    the applicant is in Australia;
(c)     the applicant has compelling personal reasons for the grant of the visa;
(d)    the applicant satisfies public interest criterion 4005, other than paragraph 4005(1)(c).
602.214(1) No Australian citizen or Australian permanent resident would be disadvantaged in obtaining medical treatment or consultation if the visa was granted.
(2) However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.
602.215(1)The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
(a)  whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b)  whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject; and
(c)  any other relevant matter.
(2) However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.
602.216(1) The applicant has:
(a)adequate means to support himself or herself; or
(b)access to adequate means to support himself or herself;
during the period of the applicant’s intended stay in Australia.
(2) However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.

[2021] AATA 518

12 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Intention

Jurisdiction

Statutory Construction

Remedies