1833558 (Migration)

[2020] AATA 5702

1833558 (Migration) [2020] AATA 5702 (22 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1833558

MEMBER:Hugh Sanderson

DATE:22 October 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 22 October 2020 at 10:23am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – not a genuine temporary entrant – use of visa to obtain ongoing residency – medical condition not urgent – no ongoing care required in Australia – can be obtained in home country – credibility issues – past breaches of visa conditions – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 November 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. The applicant applied for the visa on 5 November 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).

3. The delegate refused to grant the applicant the visa because the delegate found the applicant was attempting to use the Medical Treatment visa pathway as a means of obtaining ongoing residence and did not genuinely intend to remain in Australia on a temporary basis. Accordingly, the delegate found the applicant did not meet the criteria in cl.602.215.

   Background

4. The applicant is a citizen of Uganda and is currently [age] years old. He entered Australia [in] August 2011 on a [visa] and has not departed since then. The Department commenced an investigation as to whether the applicant had breached his [first] visa. Prior to that visa expiring, the applicant applied for a Protection visa which was refused by the Department and that decision was affirmed by the Tribunal (differently constituted) on review. He unsuccessfully appealed that decision to the Federal Circuit Court.

5. The applicant then applied for a Partner visa sponsored by [Ms A]. That application was refused by the Department on the basis that the delegate was not satisfied there were compelling reasons for not applying the Schedule 3 criteria. That decision was affirmed by the Tribunal (differently constituted) on the basis that the member was not satisfied the parties were ever in a genuine relationship. An appeal by the applicant to the Federal Circuit Court was dismissed. The applicant then applied for Ministerial Intervention which was determined as not being referred on 27 September 2018.

6. The applicant then applied for the Medical Treatment visa on the basis that he had been diagnosed in 2012 as suffering from [a medical condition]. He was seeking to remain in Australia until 22 October 2020. He said that his partner was [Ms B]. He provided a number of reports from [Dr C], [specialist], and [Dr D], [surgeon], confirming his diagnosis and recommending against any surgery. It was suggested that he have regular reviews. The most recent review of the applicant’s condition was dated 25 March 2014 in which [Dr C] stated that there had been “no significant deterioration over the past 12 months and certainly symptomatically he remained reasonably well”. There was no information which would indicate that the applicant was undergoing any continuing treatment or had any planned treatment at the time of the application.

7. In the Evidence of Intended Medical Treatment form signed by [Dr C] on 16 October 2018 it was claimed that the applicant required regular [review] and would likely require a [procedure] in the future when symptoms develop.

8. The delegate who considered the application noted the following:

   ·The information provided by the applicant did not state that he was gravely ill, receiving intensive or critical care or that he was required to remain in Australia for ongoing consultation;

   ·There was no information which indicated that the treatment the applicant was seeking in Australia was unavailable outside Australia;

   ·There was insufficient information which would indicate the applicant had an intention or incentive to depart Australia at any time;

   ·The applicant had been previously investigated by the Department for breaching visa conditions and has spent time in Australia as an unlawful noncitizen and made unmeritorious applications for previous visas;

   ·The adverse migration history of the applicant indicated that the applicant intended to continue to seek a visa pathway to remain in Australia; and

   ·There were no compelling or exceptional circumstances to warrant the departure from the requirement of the genuine visit criteria for the grant of the visa.

9. The delegate concluded that the applicant was attempting to utilise the Medical Treatment visa as a pathway to maintain ongoing residence in Australia and that he did not genuinely intend to remain in Australia on a temporary basis. The delegate found the applicant did not meet the criteria in c.602.215 and refused the application.

   Information to the Tribunal

10. The applicant appeared before the Tribunal by video hearing on 20 October 2020 to give evidence and present arguments.

11. The Tribunal commenced the hearing by explaining to the applicant the process under s.359AA of the Act. The Tribunal explained to the applicant it would be putting to him information which would be the reason, or a part of the reason, for affirming the decision under review. It would explain what this information was, why it was relevant and then invite the applicant to comment on or respond to the information. If he required more time to comment on or respond to the information, he could request an adjournment.

12. The applicant said that he was currently working [full-time]. He had been doing this for six years. He said that apart from taking the regular 10 days sick leave each year he has not had to take any more time off work. He was living with his partner, [Ms B], for the last six years. He said they were originally just sharing a house, but started a sexual relationship in 2016 and were living in a de facto relationship since then. He confirmed he knew what a de facto relationship was in that they had been living together in that type of relationship for the last four years. He said that [Ms B] was pregnant with his child and due to give birth in [2021].

13. The applicant said he last spoke to his [specialist], [Dr C] in 2018. He said that he had not had any serious signs of problems and so had not had to call him. He then said that he has problems, but they go away and so he has never had any need to call his [specialist]. He said that he is not receiving any other medical treatment. He then said that he had not seen his [specialist] because it is too expensive. He said that there was no planned treatment for his condition, but he had been told that he might need an operation at any time.

14. The Tribunal referred to the process under s.359AA of the Act referred to above. The Tribunal referred to his immigration history including the fact that his application for a Protection visa had been refused and all appeals have been unsuccessful, and his application for a Partner visa had been refused and all appeals have been unsuccessful. This was relevant as it indicated that the applicant was trying to use the visa process to remain in Australia without any justifiable reason and he did not genuinely intend to remain temporarily in Australia.

15. The applicant said that he would be happy to go back to Uganda but he might need an operation and so needed to stay in Australia until then. The Tribunal noted that he had not taken any steps to obtain any treatment over the last two years which undermined the claims that he intended to remain temporarily in Australia. He said that he could not return to Uganda.

16. The Tribunal referred to the previous evidence the applicant had provided to the Tribunal which was that he had been in a de facto relationship with [Ms B] since 2016. This is inconsistent to the information he previously provided to the Tribunal in the Partner visa application in 2017 that he was in a continuing and exclusive relationship with his sponsor. The applicant repeated this claim when he appealed the Tribunal’s decision. This undermined the credibility of the applicant and indicated that he was willing to provide false and misleading information to the Department and to the Tribunal in order to obtain an immigration outcome he designed.

17. The applicant claimed that he was confused when he said that he had been in a de facto relationship with [Ms B] since 2016. He said the computer had confused him. He said that he had separated from his sponsor for a short period and [Ms B] had provided support to him.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes.

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

20. 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).

21. The applicant is under the age of 50 years and is not medically unfit to depart Australia. Therefore, he does not meet the criteria in cl.602.212(6).

22. The basis of the applicant’s claim that he needs medical treatment is that he has been diagnosed as suffering from [a medical condition]. This diagnosis was made in 2012. At that time he was described as “virtually asymptomatic”. The opinion of [Dr D], [surgeon], was that “at some time in the future he will need surgery” but until his symptoms became more significant there was no need for surgery and it would be inappropriate.

23. There is no information which would indicate that the applicant’s condition has changed since 2012. The further reports he provided from his [specialist], [Dr C], indicates little change to his condition. The last report, dated 25 March 2014, noted “there has been no significant deterioration over the past 12 months and certainly symptomatically (the applicant) remains reasonably well”. The only further comment made by [Dr C] was made in the form provided to the Department dated 16 October 2018 where he stated the applicant would require [review] and likely require surgery when symptoms develop. Again, there is nothing to indicate that the applicant’s condition has deteriorated to any extent that he would not be able to continue any [review] in Uganda or that there is any pending treatment he requires in the foreseeable future.

24. The applicant has not consulted [Dr C] since October 2018, two years ago. He continues to work full-time and, although he claimed that he took his allotted 10 days sick leave each year, has not had to take any extra time off work or obtain any medical treatment and remains able to work full time. He claimed that he has not gone back to see [Dr C] as it is too expensive and cannot afford it, however, there is nothing to indicate that he is suffering from any condition that would require any consultation or treatment.

25. In his application, the applicant claimed that he was required to remain in Australia until 22 October 2020 as he will be under medical care. Over the period since he applied for the visa, the applicant has not been under any medical care and has not sought any treatment. There is no information before the Tribunal which would indicate that in the foreseeable future he will be seeking any treatment in Australia or anywhere else. The Tribunal does not accept that the medical condition the applicant does suffer from requires any treatment in the foreseeable future. The Tribunal finds the applicant is using the condition he suffers from as a means of remaining in Australia and does not genuinely intend to stay temporarily in Australia for the purpose of any treatment.

26. The applicant’s immigration history is poor. The applicant applied for a Protection visa. That application was refused by the Department and that decision was affirmed by the Tribunal on review. An appeal against the Tribunal’s decision was dismissed. The applicant stated during the hearing that he would have no problems returning to Uganda. That he said this indicates that the claims he has previously made were of no merit and he made the Protection visa application simply to be able to remain in Australia.

27. The applicant applied for a Partner visa. This application was refused by the Department and that decision was affirmed by the Tribunal on review. An appeal against that decision was dismissed. The applicant before the Tribunal gave evidence that he had been living with [Ms B] for the last six years and had been in a de facto relationship with her since 2016. He later claimed he was mistaken when he gave this evidence, claiming that the computer had confused him. The Tribunal does not accept this. The applicant was clear in his evidence and although he might have tried to minimise the time that he has been in a relationship with [Ms B] it is clear that he had been living with her in an exclusive relationship since 2016 at the latest.

28. This evidence is inconsistent with the claims that he was previously making in relation to his Partner visa application. In that application he was claiming that he was in an exclusive relationship with [Ms A]. The applicant and [Ms A] provided evidence to the Tribunal in 2017 that their relationship was genuine and continuing. This evidence was clearly incorrect. This indicates the applicant has been willing to provide false information and encourage other people to provide false information to the Department and to the Tribunal in order to obtain an immigration outcome he desires. It undermines the credibility of all information the applicant has provided in support of this application.

29. The Tribunal finds the applicant has been willing to make unmeritorious applications to the Department in order to be able to remain in Australia as long as possible. He has been willing to provide false information to the Department and to the Tribunal on review in respect of those applications. The applicant’s immigration history indicates that he is determined to be able to remain in Australia without any valid reason. The Tribunal finds the applicant’s immigration history indicates that in respect of the current application the applicant does not genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted.

30. The applicant claims to be in a relationship with [Ms B]. He claimed that she was pregnant and due to give birth to their child in [2021]. He is working full-time and has done so for the last six years. The fact that the applicant has taken all steps possible to establish his life in Australia indicates that he does not intend to stay temporarily in Australia for the purpose for which the visa is granted. Although he indicated that he would have no problem returning to Uganda, he has provided no information of any reason why he would consider returning to Uganda or any arrangements that he has in Uganda to return there.

31. The Tribunal has considered all the circumstances of the applicant both individually and cumulatively. As set out above, the applicant does have a medical condition, however, he does not require any current treatment for this condition apart from regular assessments from the [specialist]. Over the last two years he has not taken any steps to maintain these regular assessments and there is no information which would indicate that he requires any treatment for his condition in the foreseeable future. The applicant’s immigration history indicates that he is willing to abuse Australia’s immigration laws to be able to remain in Australia for as long as possible. The applicant has attempted to establish himself within Australia and there is nothing to indicate that he has any genuine intention of returning to Uganda, despite claiming that he has no problems in doing so. The applicant’s credibility is called into question due to his willingness to provide false information to the Department and to the Tribunal in respect of his earlier visa applications. For all the reasons set out above, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

32. Given the above findings, cl.602.215 is not met.

33. 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

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

    Hugh Sanderson
    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).