1922076 (Migration)

[2021] AATA 3541

1922076 (Migration) [2021] AATA 3541 (20 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1922076

MEMBER:Christine Cody

DATE:20 August 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 20 August 2021 at 11:00am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – an unlawful non-citizen –adverse migration history – maintaining ongoing residency –strong motivation to remain in Australia indefinitely – no evidence to show applicant is medically unfit to depart Australia –Ministerial Intervention failed – lack of compliance in the past– decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 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 for the visa on 12 July 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. This includes cl 602.215, which requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

   Application to the Department

4. In support of his application the applicant provided an application form, a copy of pages from his passport, a Form 1507 and a letter from Dr [A].

5. According to the visa application form, the applicant is a Fijian national applying for a temporary medical treatment visa. He was born in [Fiji], on [date]. His purpose of stay is “medical treatment or consultation in Australia”. He was seeking to remain for monitoring and treatment for coronary artery disease requiring stenting, diabetes, and hypertension for a 2-year period between 12 July 2019 to 11 July 2021. The treatment details were “as yet unknown”. He has 3 siblings ([names deleted]) in Australia. He is married (at hearing he indicated that his marriage had broken down). He will be financially supported by his sibling [Mr B] (an Australian citizen) for the costs of medical treatment.

6. The Form 1507 “Evidence of Intended Medical Treatment Including Consultation” was signed by Dr [A] on 28 June 2019. It states that the applicant had coronary artery disease which required stenting, diabetes, and hypertension. The treatment suggested is multiple medications, and to have regular follow up and blood tests. A letter from Dr [A] dated 17 June 2019 adds that he suffers from hypercholesterolaemia and obstructive sleep apnoea and his myocardial infarction had “needed 4 stents”; he requires multiple medications daily for his conditions.

7. The delegate refused to grant the applicant the visa because the delegate found that

   
   

   cl 602.215 was not met as the delegate was not satisfied that the applicant did genuinely intend to stay in Australia for the purpose for which the visa is granted. The delegate found that this clause must be met as he did not meet 602.212(6) (unfit to depart Australia).  In considering cl 602.215, Departmental records confirm that the applicant had unsuccessfully applied for multiple permanent visas onshore and have taken every opportunity to present his case and circumstances for review. The delegate further considered that the applicant has previously breached visa conditions and also remained unlawfully in Australia for a considerable period of time and did not contact the Department to resolve or regularise their immigration status. The delegate considered that his adverse migration history strongly indicates that he intends to continue to seek a visa pathway to remain in Australia on a permanent basis, and referred to his immigration history since 1997 as follows:

   ·     [July] 1997: the applicant arrived in Australia as the holder of a prospective marriage (Class TO) (Subclass 300) visa.

   ·     2 April 1998 – 7 April 2008: the applicant lodged 2 permanent visa applications, a Combined Spouse (Subclass 801) visa and a Protection (Subclass 866) visa, which were both refused. Review applications and Ministerial Intervention on both applications were also unsuccessful.

   ·     4 August 2008: application for Spouse (Migrant) (Class BC) (Subclass 100) visa.

   ·     12 May 2009: the applicant had been granted a Partner - Provisional (Class UF) (Subclass 309) visa which enabled him to return to Australia: this ceased on 1 February 2012.

   ·     20 January 2012: application for permanent spouse visa was refused. Review application at the High Court refused on [date] March 2019.

   ·     5 April 2019: applied for a remaining relative visa. This was found to be invalid on 7 May 2019 pursuant to s 48 of the Act as the applicant did not meet the criteria to lodge an application as he did not hold a substantive visa at the time of lodgement.

   ·     On 5 July 2019, under s 351, the applicant sought Ministerial Intervention regarding the refusal of permanent spouse visa. At the time of the delegate’s decision, that application was stated to be awaiting consideration; the applicant told the Tribunal that this request for Ministerial Intervention was unsuccessful.

8. In addition, the delegate considered that the applicant did not provide adequate documentation to demonstrate that he was gravely ill or receiving intensive or critical care or needs to stay in Australia to receive ongoing consultation or treatment nor that the treatment sought was not available in his country. The delegate found that the applicant was attempting to use the medical visa application as a pathway to remain in Australia permanently. 

9. There are no non-disclosure certificates on the Department File.

   The Tribunal

10. The applicant lodged an application for review with the Tribunal and provided a copy of the delegate’s decision record.

11. The applicant appeared before the Tribunal on 17 August 2021 to give evidence and present arguments via MS Teams (during the COVID-19 pandemic). The Tribunal also received oral evidence from the visa applicant’s brother Mr [B]. Initially Mr [B] stated that he was there to support his brother and to assist him if he could not express himself. The Tribunal explained to the applicant that it was very important that he be able to communicate with the Tribunal and an interpreter could be organised if he wanted, as it would not be appropriate to use his brother as an interpreter. The applicant said he did not need an interpreter. The Tribunal checked with him on several occasions throughout the hearing that he was understanding, and he agreed. There were some occasional technical issues and part way through the hearing the applicant converted from video to telephone. The Tribunal is satisfied that the applicant was able to express himself and understand the proceedings, and both the applicant and his brother were able to give evidence and present arguments.

12. The Tribunal put to the applicant its concerns that, having regard to his evidence and his migration history, he did not appear to meet the requirements of cl 602.215. That evidence is referred to further below. The applicant and his brother were provided with a chance to respond to the Tribunal’s concerns.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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 the requirement in cl 602.215.

15. 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).

    What is the claimed purpose of the visa application?

16. Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the 7 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(2) relates to the applicant seeking to obtain medical treatment (other than for the purpose of surrogate motherhood). Broadly speaking, it requires that:

    ·the arrangements for treatment have been concluded

    ·if the treatment is an organ transplant, the donor accompanies the applicant and all requisite arrangements have been concluded in Australia

    ·the applicant is free of a disease or condition that may be a threat to public health or a danger to the Australian community

    ·arrangements for payments of all costs and expenses associated with the treatment and stay have been concluded, and

    ·payment of such costs will not be a charge on a government or public authority in Australia, or there is evidence that the relevant government authority has approved payment.

17. The applicant told the Tribunal that he is seeking to remain in Australia to obtain medical treatment. There is no suggestion that any of the other alternative sub criteria are relevant in this case.

    Does cl 602.215 apply? Is the applicant unfit to depart Australia?

18. According to cl 602.215(2), the requirements in cl 602.215(1) set out below and in the attachment to this decision do not need to be met if the applicant is considered to be medically unfit to depart Australia as described in cl 602.212(6).

19. 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.

20. The applicant told the Tribunal that he is [age] years of age; as put to the applicant, he is not 50 years old and thus he cannot be considered “unfit to depart Australia” according to the mandatory requirements of cl 602.212(6).

21. Given the above finding, the requirements in cl 602.212(6) are not met, and thus cl 602.215(1) must be considered.

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

    Substantial compliance with conditions of relevant visas

22. The applicant claimed that he had complied substantially with the conditions attached to the Subclass 309 visa he had been granted in 2009. That substantive visa ceased on 1 February 2012. Departmental movement records show that thereafter, the applicant generally was granted bridging visas (although sometimes there were small delays in between the expiry of a bridging visa and the grant of another one).  The delegate did not specify that from 1 February 2012 there was any significant non-compliance with conditions attached to visas. 

23. The Tribunal is prepared to accept for the purposes of this application that the applicant has substantially complied with the terms of his substantive Subclass 309 visa and the subsequent bridging visas.

    The applicant’s intention to comply with the conditions to which the Subclass 602 visa would be subject and any other relevant matter

24. Conditions 8101 and 8201 may be imposed, which prohibit work and limit study or training in Australia to a maximum period of 3 months, respectively. The applicant has not suggested that he intends to work or study in Australia.

    Other relevant matters: The applicant’s intention and desire to stay indefinitely in Australia

25. The applicant told the Tribunal the following about his medical conditions and treatment:

    ·In April 2019 he suffered a minor heart attack and had a stent put in on 20 April 2019. He has heart disease but since that time, he has not had any developments or treatment except that he takes medication for his stent and blood thinners. He sees the GP once every 3 months to obtain his medications.

    ·A sleeping disorder – he said that sometimes he can’t sleep at night and in about late 2019 he started taking sleeping tablets. He takes no other treatment.

    ·Diabetes which was diagnosed in April 2019 and for which he takes medication. He takes no other treatment.

    ·Cholesterol for which he takes medication. He takes no other treatment.

    ·When asked if he has any other conditions, he said, somewhat vaguely, that he has to wait to see the doctor to see if there is anything else, but as far as he knows he has no other conditions.

26. The Tribunal is prepared to accept that the applicant has the specific conditions referred to. It notes that the only treatment he has is a 3-monthly meeting with the GP, and medications. The Tribunal is not satisfied, however, that this is the purpose for which the applicant is seeking the visa.

27. In this regard, the Tribunal put to the applicant that his migration history contains numerous applications, with all applications for permanent visas being unsuccessful. These repeated attempts to stay in Australia indicate that he doesn’t want to go back to Fiji. The applicant agreed that he doesn’t want to go back. He said his health is not good and all his family is here and 100% he wants to stay with his family, and they all want to support him.

28. He then claimed that he didn’t do anything illegal in Australia. In relation to this assertion, the Tribunal put to him that according to the delegate’s decision record he had stayed unlawfully in Australia. The applicant did not disagree; he said that he had claimed protection and he was waiting for a response and he was working, and his agent didn’t tell him that the application had been unsuccessful, and he was arrested at work. His brother made the same claim; that they both did not know they were unlawfully present. The Tribunal notes that Departmental movement records support that the applicant was unlawfully present for a number of years.[1]

    [1] This was stated to have occurred prior to his substantive Subclass 309 visa and thus not considered under cl 602.215 (1)(a).

29. The applicant also told the Tribunal that the reason he was not granted a permanent spouse visa was because he was unfortunate not to be home when the Department organised a site visit, and it appeared that he was not living there even though, he says, he had been living there, he was just unlucky with the timing of the site visit. His spouse visa application was thus refused (namely because he was found not to have a genuine spouse relationship).

30. The Tribunal considers that the applicant’s migration history indicates an ongoing intention to remain in Australia; the applicant did not disagree with this. Further, although the applicant could have indicated an intention to return to Fiji after receiving medical treatment, he did not do so. When the Tribunal asked when he intends to move back to Fiji, he responded that he does not want to  go there, there is no one to look after him and they don’t have any property and all his family is here and now he is sick and he needs to rely on his brother who is willing to help him out. The Tribunal put to the applicant that he is seeking a temporary visa for the purpose of medical treatment; however, it is his evidence that he never wants to go back to Fiji, he just wants to stay here. In response he repeated that he wants to stay here, and the situation is very bad and he has no family there and that is why he doesn’t want to go. His father brought them here for a better life, he has spent half of his life here and if he returns, he can’t find a job. Family over in Fiji is struggling and they even want money from him in Australia.

31. The Tribunal noted that all the applicant’s evidence indicates that he wants to stay in Australia. The Tribunal put to the applicant that it would appear that he could return to Fiji and continue treatment for his health conditions and his family who support him here can continue to support him in Fiji. The applicant acknowledged that this could occur. He then repeated that he does not want to go back to Fiji; he has all his nieces here.

32. The Tribunal put to the applicant that his evidence indicates that he does not seek to remain temporarily in Australia for the purpose for which a medical treatment visa is granted. His brother then gave evidence and said that overall his brother is genuinely seeking medical treatment, he has been here for 24 years, the applicant has seen the brother grow up and make a family here and it is devastating the way that the applicant has been treated (in his migration applications); things kept going “pear-shaped” for unknown reasons. He then repeated that the applicant genuinely wishes to stay here for medical treatment. The Tribunal acknowledged the brother’s evidence but told the applicant that it may not place great weight on his brother’s assertion that the applicant seeks to remain genuinely for medical treatment, especially given the applicant’s own evidence.

33. In conclusion: The Tribunal has weighed all the evidence. While it is prepared to accept for the purpose of this application that the applicant may have complied with conditions attached to a substantive visa and subsequent bridging visas, that does not outweigh the significant concerns with the applicant’s migration history, which has involved the applicant pursuing, for years, unsuccessful applications to remain in Australia. In making the current application, the applicant is suggesting that he genuinely intended, and intends, to stay temporarily in Australia for the purpose of medical treatment. His own evidence, however, that he does not intend to return to Fiji (for myriad reasons), is a clear contradiction of this. He claims that the treatment for which he wishes to stay is medications for a number of conditions (and having check-ups with a GP every 3 months), and he acknowledged that he can return to Fiji and continue to be supported financially by his family in Australia to take medications and have check-ups.

34. Even if the applicant’s claims that he was unfortunate with the site visit, and he didn’t know that he was staying unlawfully in Australia, were true, and even if he had an intention to comply with the conditions to which the visa would be subject, he clearly does not intend a temporary stay; the applicant intends to stay permanently in Australia. The Tribunal considers that the current application is actually an attempt by the applicant to prolong his stay in Australia because he wants to stay here permanently. This is not, however, a purpose for which this visa can be granted.

35. The purpose of the visa is related to medical treatment and requires a genuine intention to stay temporarily. In relation to his claim that he seeks to stay in Australia for his own medical treatment, the Tribunal does not accept that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to the considerations set out in cl 602.215(1)(a) to (c).

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

37. 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

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

   Christine Cody
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   Schedule 2

   602.215  

   (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.

   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).