1921025 (Migration)

[2021] AATA 5489

1921025 (Migration) [2021] AATA 5489 (24 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1921025

MEMBER:L. Symons

DATE:24 September 2021

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 24 September 2021 at 4:47pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary stay for purpose of visa – visa history – unsuccessful visa applications, tribunal and court reviews and requests for ministerial intervention – period as unlawful non-citizen – no medical evidence provided or current treatment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), cls 602.212(2), (6), 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 Home Affairs on 16 July 2019 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied to the Department of Home Affairs (the Department) for the visa on 24 June 2019. 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 (Cth) (the Regulations).

3. The delegate refused to grant the applicant the visa because she was not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. On 2 August 2019, the applicant applied to the Tribunal for a review of that decision.   

4. The applicant appeared before the Tribunal on 24 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from his brother-in-law, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

6. 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 satisfies the requirements of cl.602.215.

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

7. 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) which requires that an 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.

8. The evidence before the Tribunal indicates that the applicant was in Australia at the time the visa application was filed on 24 June 2019 and has remained in Australia since then. Therefore, the Tribunal finds that he meets the requirements of cl.602.212(6)(a). The evidence before the Tribunal indicates that he was born on [Date] and accordingly is [Age] years old. Therefore, the Tribunal finds that he does not meet the requirements of cl.602.212(6)(b). 

9. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 16 July 2019. It indicates that he lodged an application for a Partner Combined (class UK/BS) visa on 23 December 2011 and an application for a Protection visa on 30 November 2012 and both applications were refused. They are both permanent visas. His evidence is that his former partner withdrew her sponsorship of his application for a Partner Combined (class UK/BS) visa. He has not provided the Tribunal with any evidence in relation to why his application for a Protection visa was refused.

10. Accordingly, the Tribunal is not satisfied that the applicant 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. Therefore, the Tribunal finds that he does not meet the requirements of cl.602.212(6)(c). 

11. The applicant has not filed any medical evidence with the Tribunal or claimed that he is medically unfit to depart Australia. He gave evidence at the hearing that he has not been medically assessed by a Medical Officer of the Commonwealth. The Tribunal is accordingly not satisfied that he 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. Therefore, the Tribunal finds that he does not meet the requirements of cl.602.212(6)(d). 

12. Given the above findings, the requirements in cl 602.212(6) are not met and, accordingly, the requirement in cl 602.215 does apply.

13. In the present case, the applicant seeks the visa for the purposes of “regular doctor appointments for monitoring and check-ups and regular continuous counselling appointments” for the period 25 June 2019 to 25 June 2021. This is a purpose for which a Medical Treatment visa may be granted: cl 602.212.

14. In considering whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, the Tribunal has had regard to whether he has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by him was subject. He has filed with the Tribunal a copy of the Department’s Decision Record dated 16 July 2019. It indicates that during his time in Australia he has been an unlawful non-citizen for 107 days. The Tribunal is therefore not satisfied that he has complied substantially with the conditions to which the last substantive visa, or any subsequent Bridging visa, held by him was subject.

15. The Tribunal has also had regard to other relevant matters. The Department’s Decision Record dated 16 July 2019, filed with the Tribunal by the applicant, sets out his lengthy immigration history in Australia. It indicates that he arrived in Australia [in] August 2011 as the holder of a Prospective Marriage (class TO) (subclass 300) visa. On 23 December 2011, he applied for a Partner Combined (class UK/BS) visa and his application was refused on 20 June 2013. On 28 June 2013, he applied for a review of that decision by the Migration Review Tribunal (MRT). On 31 July 2014, the MRT affirmed the decision made by the Department.

16. The Department’s Decision Record indicates that on 30 November 2012 the applicant applied for a Protection visa. On 28 March 2013, his application was refused. On 9 April 2013, he applied for a review of that decision by the Refugee Review Tribunal (RRT). On 5 August 2013, the RRT affirmed the decision made by the Department. On 27 September 2013, he requested Ministerial intervention under s.417 of the Act. On 2 November 2013, it was deemed “inappropriate to consider”. On 11 September 2014, he again requested Ministerial intervention under s.351 of the Act. On 15 August 2015, it was “not considered”. On 22 September 2015, he made a third request for Ministerial intervention under s.351 of the Act. On 25 September 2015, it was “not referred”.

17. The Department’s Decision Record indicates that on 24 September 2015 the applicant applied for a Medical Treatment (class UB) (subclass 602) visa. On 30 September 2015, his application was refused. On 20 October 2015, he applied to the Tribunal for a review of that decision. On 19 January 2016, the Tribunal affirmed the Department’s decision. On 9 March 2016, he applied to the Federal Circuit Court for judicial review. On 19 May 2017, his application was dismissed. On 5 June 2017, he applied for a second Medical Treatment (class UB) (subclass 602) visa. On 15 June 2017, his application was determined to be invalid due to (non-payment) of the fee.

18. The Department’s Decision Record indicates that on 23 June 2017, the applicant applied for a third Medical Treatment (class UB) (subclass 602) visa. On 29 June 2017, his application was refused. On 12 July 2017, he applied to the Tribunal for a review of that decision. On 18 April 2018, the Tribunal affirmed the Department’s decision. On 27 April 2018, he applied to the Federal Circuit Court for judicial review. On 5 November 2018, his application was dismissed. On 15 November 2018, he appealed to the Full Court of the Federal Court (sic). On 23 May 2019, his appeal was dismissed.

19. On 24 May 2019, the applicant applied for a fourth Medical Treatment (class UB) (subclass 602) visa. On 16 July 2019, his application was refused. On 2 August 2019, he applied to the Tribunal for a review of that decision and that is the application currently before the Tribunal. In his visa application, he stated that he seeks the visa for the purposes of “regular doctor appointments for monitoring and check-ups and regular continuous counselling appointments” for the period 25 June 2019 to 25 June 2021. During the hearing, the Tribunal asked him what medical treatment he has received between 25 June 2019 and 25 June 2019. He responded that he has not received any medical treatment and has not been given a chance to receive medical treatment. He is not entitled to Medicare and cannot afford to pay for medical treatment himself. He lives with his sister, brother-in-law and their four children. They cannot afford to pay for his medical treatment.

20. The Tribunal asked the applicant why he has not returned to Lebanon. He responded that he has no funds to return to Lebanon and has nothing to go back for. The situation in Lebanon is very bad. There is no government, no food, no power, no healthcare, the people have nothing to eat and the hospitals are closed. He came to Australia to marry his cousin but she had a relationship with another man, ended their relationship and withdrew her sponsorship for his visa application. He came here with hopes and aspirations to start a new life with her, have a family and a future but it did not work out and he feels frustrated. He tried to meet another woman and start life with her but that did not work out either.

21. The Tribunal asked the applicant why he now wants the Medical Treatment visa. He responded that he is seeking treatment so that he can restore his condition to what it was when he came to Australia. When asked what type of treatment he wants to receive, he responded that he is physically unwell and cannot get married anymore as he cannot be “a full husband physically”. He has repeated this to everyone. He wants to receive treatment so that he can be as he was when he arrived here. When asked from whom he will receive this treatment, he responded that he applied for a Medical Treatment visa so that he can get the help and support he needs but no one is looking after him or caring for him. He wants the visa for at least a year, entitlement to Medicare benefits and permission to work in Australia.

22. The applicant’s brother-in-law, [Mr A], gave evidence at the hearing. His evidence was consistent with the evidence given by the applicant. When asked whether the applicant had obtained immigration advice from a migration agent, he responded that the applicant has a migration agent who has been responsible for preparing the paperwork.

23. The Tribunal asked the applicant whether he was aware of the requirements for a Medical Treatment visa. He responded that he was aware of these things but had forgotten them. The Tribunal informed him of the requirements under cl.602.212(2)(a), (b) and (e) and noted that his evidence indicated that he did not comply with these requirements for the visa. When this was raised as an issue with him, he declined to respond. The Tribunal also raised as an issue his immigration history and his own evidence of his intentions and noted that this may lead it to the conclusion that he was using Medical Treatment visas to extend his residence in Australia and not because he had any intention of getting medical treatment in Australia.

24. The applicant responded that he did not know what to say. He is not permitted to work so how can he make money to pay for medical treatment. He cannot afford to pay for medical treatment. His sister and her husband have their own worries. He does not know how to get funds to pay for medical treatment.

25. The applicant’s immigration history (including living in Australia as an unlawful non-citizen for a period of 107 days) and his own evidence lead the Tribunal to the conclusion that he has no intention of returning to Lebanon, he wants to live in Australia permanently and he wants access to the benefits of being an Australian permanent resident. The Tribunal is of the view that he has used repeated applications for Medical Treatment (subclass 602) visas, which are not subject to the bar under s.48 of the Act, for the purpose of maintaining ongoing residence in Australia.

26. On the evidence before it, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Therefore, the Tribunal finds that he does not meet the requirements of cl 602.215.

    CONCLUSION

27. 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

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

    L. Symons
    Member