1822653 (Migration)

1822653 (Migration) [2020] AATA 3099 (10 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1822653
MEMBER:Rosa Gagliardi
DATE:10 March 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the first-named visa applicant a Medical Treatment (Visitor) (Class UB) visa.
The Tribunal does not have jurisdiction in relation to the secondary applicants.

Statement made on 10 March 2020 at 4:36pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary entrant – fear of returning to Lebanon – highly incentivised to remain in Australia – Ministerial Intervention sought to lift s.48B bar – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 19 July 2018 to refuse to grant the applicants Medical Treatment (Visitor) (Class UB) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 2 July 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 delegate refused to grant the visas he/she was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, that is, medical treatment (cl.602.215).
The first-named applicant appeared before the Tribunal on 19 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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).
A “genuine visitor” is not defined in the Act, however, under policy ‘visit’ refers to the nature and duration of the proposed visit and the applicant’s genuine intention to leave Australia at the end of the medical treatment plan.
cl.600.215
(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.
In making a decision, the Tribunal has had regard to the following considerations:
-Whether the applicant has complied substantially with the conditions to which the last substantive visa, or any bridging visa, held by the applicant was subject
-Whether the applicant intends to comply with the conditions to which the visa would be subject
-Whether the applicant is attempting to obtain the visa to remain in Australia for a longer period, such as maintain ongoing residence in Australia
-The personal circumstances of the applicant that would encourage them to return to their home country at the end of the proposed stay
-The personal circumstances of the applicant in their home country that might encourage them to remain in Australia (for example, economic situation, civil disruption)
-Conditions that might encourage the applicant to remain in Australia
-The presence of immediate family members in their home country, that is, does the applicant have more close family members living in their home country than in Australia.
Does the applicant have a genuine intention to stay temporarily for the visa purpose?
At the outset of the hearing, the migration agent stated that the applicant had sought the Medical Treatment visa to enable her access Ministerial Intervention to have the s.48B bar lifted to enable her to apply for another Protection visa. It was acknowledged that it was not likely that the applicant could meet the requirements of a Medical Treatment visa. The Tribunal explained that if the case met the current guidelines for matters being referred to the Minister it would be. However, the Tribunal was required to assess whether the applicant met the requirements of the visa and if not, only then could the matter be considered for Ministerial intervention.
The Tribunal also explained to the first-named visa applicant that it may not have jurisdiction to review the secondary applicants’ matters as individual applications for review had not been submitted by each of the applicants.
Whether the applicant has complied substantially with the conditions to which the last substantive visa, or any bridging visa, held by the applicant was subject
As noted by the Departmental decision submitted to the Tribunal for the purposes of the review. The first-named visa applicant first arrived in Australia [in] April 2010 on a [student] visa. This visa was valid until 15 June 2012. The applicant was unlawfully in Australia from 16 June 2012 until 22 February 2013, when the applicant was granted a further [student] visa on 22 February 2013 which was valid until 11 October 2013. The applicant was again an unlawful non-citizen from 12 October 2013 until 28 October 2013 when she was granted a Bridging visa valid until 21 July 2016. A further Bridging visa was granted and in between these two Bridging visas the applicant remained lawful. It was when she was granted a further Bridging visa valid until 2 June 2017 that the applicant again became unlawful as she only approached the Department to regularise her status on 3 July 2017.
At hearing the applicant stated that there had been extenuating circumstances in that she had been the victim of family violence. The Tribunal has sighted an Intervention Order against her former husband to protect herself and her children, issued [in] September 2016, but the Tribunal is perplexed as to why the applicant was unable to approach the Department to advise that she was having difficulty and to ensure that she had a visa to be in the country.
The Tribunal places some, albeit limited, adverse weight on the applicant’s lack of adherence to Australia’s immigration laws and accepts that she may have been dealing with difficult circumstances, and from the medical evidence submitted, psychological issues.
Whether the applicant intends to comply with the conditions to which the visa would be subject
On the applicant’s past conduct it would appear that the applicant complies if it is in pursuit of her remaining in Australia.
Whether the applicant is attempting to obtain the visa to remain in Australia for a longer period, such as maintain ongoing residence in Australia
The applicant claims that she is unable to return to her home country of Lebanon because she fears for her safety as her former husband’s family may be in pursuit of her. This is because her former husband’s family would mistreat her and interfere with her life as they were highly radicalised and conservative, especially towards women. Women’s rights in Lebanon were not respected. She was very frightened to return because according to the religious law her former husband’s family could place her in “obedience house” (“Bayt Al Ta’a) and legally she could lose her children to their father because as yet they had not legally divorced in Lebanon. The Tribunal noted that Lebanon had a family law system that would regulate child custody and so forth. The applicant strongly refuted that it was a fair system in terms of women’s rights. The courts always gave priority to the father.
The Tribunal notes that the applicant has previously applied for Protection in Australia which was refused and then affirmed by the Administrative Appeals Tribunal, as it was previously constituted. She is now requesting the Minister lift the s.48B bar to enable her to apply for a Protection visa again.
The applicant has been forthright in her statements that she fears returning to Lebanon. At hearing she stated that she needed to continue psychological treatment in Australia on an indefinite basis as a result of the family violence she experienced. Nonetheless, the applicant has been clear in stating that she does not wish to return to Lebanon due to her fears of her former husband’s family.
It is evident that the applicant has a strong intention to remain in Australia. The Tribunal places significant adverse weight on this matter.
The personal circumstances of the applicant that would encourage them to return to their home country at the end of the proposed stay
The applicant is totally inimical to the idea of returning to Lebanon. She is now a single mother raising her children and fears the stigma and lower economic-social role she will have with such a status. She also fears that if she returns to Lebanon she will lose her children because religious laws will dictate that women have fewer rights than men in family law matters. The applicant is highly incentivised to remain in Australia.
The personal circumstances of the applicant in their home country that might encourage them to remain in Australia (for example, economic situation, civil disruption)
As noted at hearing the applicant came from the Akkar region in Northern Lebanon that is a particularly depressed area in Lebanon and is becoming increasingly so given the influx of Syrian refugees into the area placing pressure on infrastructure, housing and employment.[1] Lebanon generally was also currently undergoing protests due to the dire economic circumstances of the country.[2] As a single mother, the applicant would face a particularly harsh experience in such an economic context.
Conditions that might encourage the applicant to remain in Australia
[1] Department of Home Affairs, Australia, Lebanon: CI180316163847746 – Akkar, 3 April 2018.
[2] Lebanon: Little Action on Corruption, Economic Crisis, Human Rights Watch, World Report 2020, accessed on 10 March 2020.
The Australian context is most favourable to the applicant being able to establish herself and her children, without fear from her former husband and his family. The applicant claims that for socio-religious reasons she would not receive the protections from family violence in Lebanon that she would in Australia.
The presence of immediate family members in their home country, that is, does the applicant have more close family members living in their home country than in Australia.
The Tribunal considers that the applicant is highly motivated to remain in Australia and that no amount of close family members in Lebanon will motivate her to return to the country she claims she will face harm in.
Given the above findings, cl.602.215 is not met.
The Tribunal does not have evidence before it to indicate that the applicant is medically unfit to depart Australia.
The applicant has submitted a good deal of material relating to the mental health issues she has suffered as a consequence of the claimed family violence endured by her former husband in Australia. The Tribunal encourages the applicant to put any evidence she considers demonstrates there are compassionate circumstances for lifting the s.48B bar directly to the Minister.
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 applicants Medical Treatment (Visitor) (Class UB) visas.
Rosa Gagliardi
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 3099

10 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice