1820643 (Migration)

1820643 (Migration) [2020] AATA 6151 (16 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1820643
MEMBER:Tania Flood
DATE:16 December 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

Statement made on 16 December 2020 at 2:58pm
CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 (Medical Treatment) – genuine intention to stay temporarily – lack of compliance in the past – adverse migration history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212, 602.215

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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 June 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 applied for the visa on 29 March 2018. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). 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 visa was refused because the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The delegate considered the applicant was seeking to obtain a medical treatment visa to maintain ongoing residence in Australia.
The applicant appeared before the Tribunal on two occasions on 29 September and 14 December 2020 to give evidence and present arguments. The first hearing was adjourned due to the need for the services of an interpreter. The second hearing was conducted with the assistance of an interpreter in the Tok Pisin and English languages. The Tribunal also received oral evidence from the applicant’s partner.
The applicant was represented in relation to the review.
Background
Department records show that the applicant last arrived in Australia [in] January 2013 on a Tourist (Subclass 676) visa. After the visa ceased [in] February 2013 the applicant remained unlawfully before being granted a Bridging Visa E in association with a [permanent] visa application. The [permanent] visa was refused and the applicant sought review of the decision. The decision was affirmed on 21 December 2017.
On 29 March 2018 the applicant applied for a Medical Treatment visa. On Form 48ME the applicant indicated that he is a citizen of Papua New Guinea and living in a de facto relationship in Australia. He stated that he wished to remain in Australia from [date] March 2018 to [date] March 2019 to undergo medical treatment for [medical conditions] and to undergo [an] operation. He indicated that he would require permission to work in order to cover the costs of his medical treatment. He stated he would also be receiving financial and other support from his de-facto partner. On Form 1507 the applicant indicated that he requires [specified treatment] and is awaiting further review by a respiratory specialist.
A letter from the applicant’s general practitioner dated 20 June 2018 outlines the applicant’s conditions and treatment as follows:
- [details deleted].
On 2 June 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Regulations and invited him to provide information about any medical treatment that has been concluded or is ongoing. The applicant was also asked to provide information to support that he genuinely intends to stay temporarily in Australia for the purpose of medical treatment.
On 16 June 2020 the applicant submitted two letters from his general practitioner. A letter dated 9 June 2020 states that the applicant has a need for ongoing cardiac treatment and assessment in Australia. A second letter which is also dated 9 June 2020 states that the applicant is also awaiting placement for [specified surgery] and a decision from his urologist regarding treatment of [a medical condition].
On 23 June 2020 the Tribunal received a letter from the applicant’s heart specialist which states he requires ongoing periodic [review]. The letter also states that the applicant requires urological intervention shortly.
On 23 June 2020 the Tribunal received a submission which states that the applicant’s ailments would be life threatening in Papua New Guinea because he lives in [an area] which is a remote and isolated region with only 4WD access in the dry season. If the applicant required medical treatment in the rainy season he would have to be carried down the mountain and across a river and it would be days before he could reach the nearest hospital. It is submitted that many people with the applicant’s conditions have died in Papua New Guinea and that it is not possible to be admitted to any hospital in Papua New Guinea without money.
On 6 August 2020 the Tribunal received a letter from the applicant’s general practitioner dated 15 June 2020. This letter refers to the cardiac surgery the applicant formerly underwent and states that while the applicant seems to have improved after [the surgery] he will need cardiology input indefinitely. However, his active acute issue may be resolved by the end of this year.
On 17 September 2020 the Tribunal received a copy of a letter addressed to the applicant and dated 10 September 2020 which states that he is booked to undergo surgery on [date] October [2020] . The letter sought confirmation of the applicant’s intentions within 5 days of receipt of the letter.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issue in this case is whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
Is the applicant unfit to depart Australia?
Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the seven alternative sub criteria in cl.602.212(2)-(8). These relate to the basis for which the stay in Australia is required. Relevantly to this matter, cl.602.212(6) relates to an applicant being medically unfit to depart Australia. It requires that the applicant:
·is in Australia
·has turned 50
·has applied for a permanent visa in Australia and appears to have met all the criteria for that visa other than the health criteria but has been refused the visa, and
·is medically unfit to depart Australia due to a permanent or deteriorating disease or condition evidenced in writing by a Medical Officer of the Commonwealth.
There is no suggestion that any of the other alternative sub criteria are relevant in this case.
The applicant is in Australia. He informed the Tribunal that he was born in [year] and the Tribunal is therefore satisfied he has turned 50. The above migration history shows the applicant previously applied for a permanent [visa] but he confirmed during the hearing that he was found not to meet the criteria for the grant of the visa. Accordingly, the Tribunal is satisfied he does not meet the criterion at cl.602.212(6).
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. 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, as well as the applicant’s intention to comply with the conditions to which the Subclass 602 visa would be subject and any other relevant matter. This requirement will not apply if the applicant is medically unfit to depart Australia as described in cl.602.212(6). In view of the above finding cl.602.215 applies.
During the hearings the Tribunal discussed with the applicant his personal circumstances and his various medical conditions for which he is seeking medical treatment. The Tribunal is satisfied on the basis of the medical reports before it that the applicant is attending medical consultations for ongoing health complaints. The Tribunal accepts the applicant has undergone surgical procedures for his heart and [other medical] conditions for which he requires follow up assessments. The Tribunal also accepts on the applicant’s advice that he is undergoing further assessment for problems related to his kidneys and that his [other medical] problem remains unresolved.
The Tribunal discussed with the applicant his migration history, the nature and purpose of medical treatment visas and the fact that he has remained in Australia beyond the date of the requested medical treatment. In the course of this discussion the applicant confirmed that he has been in a de facto relationship with his partner for approximately five years. His partner, who was also present at the hearing, supported his [evidence]. He confirmed he has not applied to sponsor the applicant for a Partner visa due to the high application fee. He said that he is on a disability pension and does not have the resources to do so. The applicant stated that [he] has brothers and sisters living in [PNG]. He further advised he does not own a home or have other assets in PNG.
The Tribunal asked the applicant when his medical treatment is likely to conclude and he replied that he does not know because it is an ongoing process. When asked what he intends to do when his treatment concludes he said he is not sure. He later added that if he is granted a medical treatment he will comply with the conditions of the visa. When the Tribunal pointed out that he has not always complied with Australia’s immigration laws he said that in future he would do so. The applicant’s partner testified that he personally encouraged the applicant to regularise his visa status and offered his assurance that he will ensure the applicant returns to PNG when the time comes. He said that when that time comes they will assess how to make an application for a Partner visa offshore. He added that the applicant would not be alive today if he had not remained in Australia for medical treatment. He said the conditions in the applicant’s home area would make it physically impossible for him to access medication treatment. The applicant’s partner offered to provide a further medical report in respect of the applicant’s kidney prognosis but the Tribunal indicated it was not necessary as it accepts the applicant has various medical conditions for which he is seeking treatment.
The Tribunal has considered the applicant’s responses and has some sympathy for the submissions made in respect of the circumstances he would find himself in on return to PNG. However, on the available evidence, the Tribunal cannot be satisfied that he genuinely intends to stay in Australia temporarily for the purpose of obtaining medical treatment. His migration history shows that he has lived in Australia for nearly 8 years and in that time he has, based on the available evidence, cemented a relationship with his de facto partner and gone to some considerable lengths to remain in Australia permanently. The Tribunal considers he is highly motivated to remain in Australia permanently. While he claimed during the hearing that he will depart Australia when his treatment concludes the Tribunal considers he has very little incentive to do so and is not satisfied that he would return to PNG. [Information deleted]. While he and his partner indicated that they would apply for a Partner visa offshore the evidence before the Tribunal is that despite the good intentions they expressed they lack the financial resources to make an application for a Partner visa. As the applicant’s partner is on a disability pension and the applicant would likely find himself without employment in PNG due to his age and ailing health, the Tribunal is not persuaded that the situation is likely to be any different in the future. The Tribunal considers that these circumstances will once again entice the applicant to remain in Australia unlawfully rather than return to PNG.
For the above reasons the Tribunal is not persuaded that the applicant will depart Australia, even temporarily, at the end of any permitted stay to undergo medical treatment.
Having regard to the considerations in cl.602.215 and the matters set out above, the Tribunal finds that the applicant does not intend to stay temporarily in Australia for the purpose for which the visa is granted. Accordingly, cl.602.215 is not met.
Based on the findings above, the applicant does not meet the requirements for the grant of the visa. The decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.
Tania Flood
Member

ATTACHMENT
Migration Regulations 1994
Schedule 2
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).

[2020] AATA 6151

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Appeal