1827269 (Migration)

[2020] AATA 1241

1827269 (Migration) [2020] AATA 1241 (9 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1827269

MEMBER:Justine Clarke

DATE:9 January 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

Statement made on 09 January 2020 at 11:02am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – applicant’s immigration history – brief unlawful residence – intention to remain in Australia permanently – applicant has Australian citizen partner and children – unique or exceptional circumstances – best interests of the Australian citizen children – former lawyer’s negligence in Partner visa application – financial hardship – Ministerial Intervention referral – decision under review affirmed    

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351, 359A, 376
Migration Regulations 1994 (Cth), Schedule 2, cls 602.212, 602.215

CASES

El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840         

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 August 2018 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2. On 9 August 2018, the applicant applied for the visa. 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).

3. The applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the applicant the visa because the applicant did not meet cl.602.215. The delegate outlined the applicant’s immigration history, noting that he had been an unlawful non-citizen for 5 days before lodging the application for the visa. The delegate was of the view that the applicant’s ‘adverse migration history strongly indicates that they intend to continue to seek a visa pathway to remain in Australia on a permanent basis’. The delegate noted the applicant’s contention that he would like to remain in Australia to seek medical treatment for counselling but the delegate found that

   The documentation provided in support of the application does not state that the applicant is gravely ill or receiving intensive or critical care, nor does it state that they must remain in Australia for ongoing consultation. Information provided does not state that the treatment they are seeking is unavailable outside of Australia.       

4. On 18 September 2018, the applicant applied to the Tribunal for review of the primary decision.

5. On 7 January 2020, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife [Ms A] and her mother [Ms B]—both in person. The applicant’s employer [Employer A] was available to give oral evidence by telephone but having heard the other evidence, the Tribunal did not consider it necessary to hear from [Employer A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages. The applicant was represented pro bono in relation to the review by his registered migration agent and the agent also attended the hearing.

6. At the outset, the Tribunal notes that the written submissions of 2 January 2020 (Tribunal file ff.93–95) state that [Ms A] has an intellectual disability. Before hearing oral evidence from [Ms A], pursuant to paragraph 28 of the Tribunal’s Migration and Refugee Division Guidelines on Vulnerable Persons, the Tribunal discussed with the representative the issue of [Ms A’s] capacity to give sworn evidence. The representative submitted that there was no suggestion that [Ms A] did not have capacity to give oral evidence but that the Tribunal should avoid complex language and questions. The Tribunal used the strategies outlined in paragraph 59 of the Guidelines to assist [Ms A] at the hearing.

7. The Tribunal also notes that [Ms B] is hearing impaired. Similarly, the Tribunal consulted the section of the Guidelines dealing with sensory impairment and encouraged [Ms B] to inform the Tribunal if there was anything it could do to assist her at the hearing. 

8. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 meets cl.602.215. The primary decision contains an extract of cl.602.215.

10. In assessing the issues, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files as well as the oral evidence given at the hearing.

    The non-disclosure certificate

11. The Department’s file contains a non-disclosure certificate made on 19 March 2019, pursuant to s.376 of the Act. The certificate relevantly states:

    The source information received in the Border Watch Allegations and Referral Team via web form on 14th March 2019 of TRIM reference number [number] of file number [number], and certify that disclosure of this material would be contrary to the public interest because it may:

    (a)  Disclose, or enable a person to ascertain the existence or identity of, a confidential source of information.

12. The certificate contains both a date and a signature by the delegate (as required by El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840) and the Tribunal considers that this certificate was validly made as the delegate has provided sufficient reasons for non-disclosure on public interest grounds.

13. The Tribunal provided the applicant with a copy of the certificate at the hearing and informed him that, while the Tribunal considered that the certificate was validly made, the Tribunal did not consider that the content sought to be protected from disclosure is relevant information. Notwithstanding, the Tribunal noted that it has discretion to disclose the information subject to the certificate to the applicant and was obliged to afford him an opportunity to seek a favourable exercise of the discretion in s.376(3)(b).

14. The Tribunal adjourned the hearing so that the representative and the applicant could discuss the matter. When the hearing resumed, the representative informed the Tribunal that his client would not be seeking a favourable exercise of the discretion.

15. The Tribunal considers that it has complied fully with its obligations with respect to the non-disclosure certificate. For the avoidance of doubt, the Tribunal states here that it does not consider that the content sought to be protected from disclosure engages the Tribunal’s obligations under s.359A of the Act.

    The concession

16. The Tribunal notes that the first paragraph of the written submissions stated that ‘the Tribunal is urged—in the event that it affirms the decision under review—to make a recommendation that the Minister exercise his powers under s 351 of the Migration Act 1958 (Cth)’.

17. At the hearing, the Tribunal sought clarification from the representative about whether the applicant conceded that he did not meet cl.602.215. The representative explained that the fact that the applicant had an Australia partner, [number] children born in Australia and a desire to remain in Australia with his family most likely precluded him being able to claim that he meets cl.602.215.  

18. The Tribunal explained, to the applicant, the requirements of cl.602.215 and sought clarification about whether he conceded that he did not meet cl.602.215. The applicant gave oral evidence that his intention was to remain in Australia with his family for the long term. He essentially conceded that he did not meet cl.602.215 and expressed his desire for the Tribunal to consider his request for the Tribunal to request referral of the matter to the Minister for his consideration.

19. The Tribunal notes that the Direction by the President of the Tribunal as to Conducting Migration and Refugee Reviews outlines the process for referrals for ministerial intervention. In particular, the Tribunal notes the following section of the President’s Direction.

    Applications lodged to facilitate a request to the Minister

    16.6 In cases where an applicant concedes they do not meet the criteria for a visa and indicates that the purpose of the application is to seek referral to the Minister, the applicant should be asked whether they consent to the matter being determined on the papers in light of any written evidence or submissions the applicant wishes to make. The member will then assess the available material in deciding whether to refer a matter to the Minister.

    16.7If the applicant does not consent to the matter being determined on the papers, there being no need for oral evidence in relation to the visa criteria, the member will determine whether to receive oral evidence at a hearing. If the member determines not to take oral evidence, the hearing may be limited to oral submissions only.  

20. The Tribunal was mindful that the applicant and the witnesses, together with the applicant’s [children], had travelled to attend the hearing from country Victoria. In the circumstances, the Tribunal determined to take both oral submissions and oral evidence.

    Does the applicant have a genuine intention to stay temporarily for the visa purpose?

21. 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.

22. This requirement will not apply if the applicant is medically unfit to depart Australia as described in cl.602.212(6) (extracted in the attachment to this decision).

23. Clause 602.212(6) 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.

24. The written submissions filed with the Tribunal gave the applicant’s date of birth as a specific date in [year]. The applicant has not yet turned 50 years of age. Given this finding, the requirements in cl.602.212(6) are not met. Accordingly, cl.602.215(1) applies.

25. The Tribunal notes that in his Form 48ME Application for a Medical Treatment visa, which is on the Department’s file, the applicant claimed that he would be under medical care in Australia from 2 August 2018 to 2 September 2018 and described the medical treatment as follows:

    The above dates are approximate … The medical treatment required consists of counselling further to a mental health plan made by the applicant’s GP, [name omitted]. The applicant suffers from an acute episode of depression following the refusal of his Partner visa application and apparent failure by his migration agent to advise him of the decision in time to seek merits review.

26. There is no supporting evidence on the Department’s file and no evidence in support of this claim has been submitted to the Tribunal.

27. Having considered the evidence before the Tribunal and the concession made by the applicant, the Tribunal finds that cl.602.215 is not met. Therefore, the applicant cannot meet the criteria for the grant of a Subclass 602 visa. Accordingly, the decision under review must be affirmed.

    Consideration of request for referral to the Minister for intervention

28. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

29. The written submissions submit that this is a case that exhibits a number of unique or exceptional circumstances such that the Minister may consider exercising his discretion.

30. As noted earlier, the Tribunal has had regard to the President’s Direction, Conducting Migration and Refugee Reviews, especially at paragraphs 16.1–16.7 concerning referrals for ministerial intervention. The Tribunal has also had regard to the Minister’s Guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J) available in the Procedures Advice Manual 3.

31. It was submitted that the applicant’s circumstances fall squarely within the Minister’s Guidelines, notwithstanding the fact that it may be open for the applicant to make an application for an offshore Partner visa. In his closing oral submission, the representative stated that this was an extremely unusual case with many unusual features.

32. The Tribunal notes the main bases for the request are that:

    ·The applicant was unable to seek merits review of the refusal of his Partner visa as a direct result of his former lawyer’s negligence, specifically the failure of those lawyers to notify the Department that they had ceased to act for him and inform the applicant of the Partner visa refusal decision until more than a month after that decision was made. The applicant filed an email from his former lawyer to the representative acknowledging, in detail, the ‘confusion between our office and the applicant at the time the decision was made’. The representative submitted that while the applicant may be able to seek compensation from his former advisers in respect of any period of lost income while he awaits the outcome of an offshore Partner visa application, this will effectively be paid by the taxpayer through his former adviser’s statutory insurer, the LPLC.

    ·The best interests of [Australian citizen] minor children—being the [children] of the relationship between the applicant and [Ms A], aged [ages] respectively and [Ms A’s] child from a previous relationship aged [age] years—would be best served by granting the applicant a short-term visa to enable him to make a further onshore Partner visa application.

33. It was submitted that:

    [Ms A’s] total pension and other government benefits would barely cover the rent on the family home, and would leave her unable to pay for food and other bills. Her receipt of a disability support pension is prima facie evidence of her incapacity to work and replace her husband’s income while they await the outcome of an offshore Partner visa application. The children are therefore at serious risk of homelessness if [the applicant] is required to leave Australia.

34. The Tribunal notes that there is evidence before the Tribunal that the [age] year old child has an intellectual disability and ‘severe behavioural problems’ and a NDIS plan is in place.

35. The Tribunal heard credible oral evidence from the applicant about the circumstances in which he engaged his former lawyer and the circumstances in which he found out about the refusal of his application for a Partner visa.

36. The Tribunal also heard credible oral evidence from the applicant, [Ms A] and [Ms B] about the extreme hardship all three of them and the [children] would face if the applicant were required to go offshore to apply for a Partner visa.

37. The applicant submitted a number of documents in support of the submissions.

38. The Tribunal was impressed by the credibility of all persons who gave oral evidence at the hearing and accepts the validity of the oral evidence and submissions that were made. Examining the relevant factors individually (including other reasons outlined in the submissions such as that an Australian small business is likely to suffer financial detriment if the applicant is unable to remain in Australia) and cumulatively, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.

    DECISION

39. The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

    Justine Clarke
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 2

    602.212 ...

    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.

    …