1933629 (Migration)

[2020] AATA 6195

1933629 (Migration) [2020] AATA 6195 (17 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1933629

MEMBER:Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:         17 March 2020 at 1:30 pm (WA time)

DATE OF WRITTEN RECORD:                17 April 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 17 April 2020 at 1:07pm

CATCHWORDS

MIGRATION – Medical Treatment (Class UB) visa – Subclass 602 (Medical Treatment) – genuine temporary visitor – need for the treatment in Australia – intention to maintain ongoing residence in Australia – unfitness to depart Australia – limited family ties in Fiji – arrangements for treatment expenses – substantial compliance with previous visas – criminal conviction – referral for Ministerial Intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 602.211, 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.

APPLICATION FOR REVIEW

ORAL DECISION OF MEMBER JUDD  [1.46 pm]

MEMBER:  Statement of decision and reasons, application for review. 

This is an application of a review of a decision made by a delegate of the Minister for Immigration on 21 November 2019 to refuse to grant the applicant the medical treatment visitor (class UB) visa under section 65 of the Migration Act. The applicant applied for the visa on 4 November 2019. At that time class UB contained one subclass, subclass 602 (medical treatment). The criteria for the grant of the visa are set out in parts 02 of schedule 2 to the Migration Regulations.

The subclass 602 medical treatment visa is primarily for persons seeking to visit or, in the applicant’s case, remain in Australia temporarily for medical treatment or related purposes.  From the decision record it appears the delegate refused to grant the applicant the visa for the following reasons.  On 4 November 2019 the applicant had lodged the application for a medical treatment 602 visa, indicating he would prefer to remain in Australia until 28 June 2020.  He sought the medical treatment visa to seek medical treatment for conditions known as lumbar spinal stenosis and radiculopathy.

The tribunal notes from its own research that lumbar spinal stenosis is a medical condition in which the spinal canal narrows and compresses the nerves and the blood vessels at the level of the lumbar vertebrae.  Myelopathy occurs from spinal stenosis that causes pressure on the spinal cord.  If untreated, this can lead to significant and permanent nerve damage, which in worst case scenarios can include paralysis and even death.  It can impinge nerve roots and cause pain, weakness or sensory changes in arms or legs.

Radiculopathy, also referred to as a pinched nerve, refers to set of conditions in which one or more nerves are affected and do not work properly.  This can result in pain, radicular pain, weakness, numbness or difficulty controlling specific muscles.  Radiculopathy can be accompanied by myelopathy, which is compression of the spinal cord itself.  A herniated or bulging disc can sometimes press on the spinal cord and on the nerve roots.  When the spinal cord is involved the symptoms can be severe, including poor coordination, trouble walking and even paralysis.

Back to the decision record, the delegate assessed that the application did not indicate that the applicant is gravely ill or receiving intensive or critical care.  The application also did not state that the applicant must remain in Australia for ongoing treatment and consultation.  Just by way of note, the tribunal is not, in itself, required to consider those aspects.  They appear to relate to departmental policy considerations.

The delegate assessed there was nothing within the application indicating that the treatment sought was not available outside of Australia.  The tribunal notes that the applicant’s home country is Fiji.  The delegate considered that the applicant had not supplied sufficient documentation to demonstrate intention or incentive to depart Australia at the time of the decision, or in the near future.  The delegate also noted that the applicant had unsuccessfully applied for a permanent visa on shore, and had taken all available opportunities to pursue review of those unsuccessful applications.

The delegate was of the view that the applicant intended to continue to seek to remain in Australia on a permanent basis. Furthermore, the delegate found on balance that the applicant was attempting to utilise the medical treatment visa pathway as a means of maintaining ongoing residence in Australia, and that he does not genuinely intend to remain in Australia on a temporary basis. For these reasons the delegate was not satisfied that the applicant met the requirements of clause 602.215 in schedule 2. This relates to genuine intention to stay temporarily in Australia. The delegate’s decision stated that:

It was necessary for the applicant to satisfy subclause 602.215(1) as they have not satisfied the requirements of subclause 602.215(2).

Subclause (2) requires the applicant to meet the requirements of subclause 602.212(6) regarding unfitness to depart Australia.  Because the applicant had not demonstrated he was not fit to depart, the delegate was not satisfied he met subclause 602.215(6).  As clause 602.215 was not met, the delegate found the criteria for the granting of the visa were not met by the applicant, and the application was refused.

The key issue for the delegate was the genuine intention to stay temporarily.  The tribunal notes tribunal policy to the effect that the tribunal should deal with the issue or the issues upon which the application was refused.  In other words, not frolicking on its own journey in relation to the satisfaction of the requirements. 

The applicant first appeared before the tribunal on Friday, 31 January 2020 from detention, to give evidence and present arguments.  The tribunal had not been requested to obtain oral evidence from witnesses.  The tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages, however,  that proved not to be necessary for most of the hearing.  He was represented in relation to the review by his registered migration agent, [Representative A].

Background Information

The tribunal was aware of the background circumstances concerning how the applicant found himself to be in immigration detention.  They are as follows.  He first arrived into Australia [in] September 2012, upon a prospective partner subclass 300 visa.  On 13 February 2013 the applicant and his then partner, lodged a combined application for a subclass 820, class UK, partner visa and, as is the norm, an 801 partner visa, at the same time.

On 10 May 2013 he was granted the 820 temporary visa, pending consideration of the 801 visa.  The relationship between the applicant and the sponsor eventually broke down.  In April 2016 the sponsor withdrew sponsorship.  On 2 August 2016 the delegate refused to grant the 801 partner visa application.  10 days later, on 12 August 2016, the applicant lodged an application for review of that decision to the tribunal.  On 13 October 2016 he was granted a bridging visa E, subclass 050 visa.  This was cancelled by the Minister on 17 March 2017 on the basis of the applicant breaching an intervention order taken out by his ex-partner the day before, being 16 March.

It appears he has been in immigration for nearly three years. On 24 August 2017 the AAT differently constituted affirmed the delegate’s refusal decision for the 801 visa. It was not satisfied he met the criterion in clause 801.221 of schedule 2 to the regulations. Consequently, [in] September 2017 he lodged an application for judicial review of the tribunal decision with the Federal Circuit Court of Australia, which delivered its decision [in] September 2018. The Federal Circuit Court dismissed the application for judicial review.

The applicant lodged an appeal against that decision with the Federal Court.  It delivered its decision [in] April 2019, also dismissing the appeal.  [In] May 2019 he lodged an application for leave to appeal to the High Court of Australia.  [In] September 2019 the High Court refused the application for special leave to appeal.  On 4 November 2019 he lodged the present application for the medical treatment, subclass 602, visa whilst he was in immigration detention.

It appears he has been on a bridging visa since 13 October 2016.  At the time of the breaching of the intervention order he was subject to a bridging visa.  The facts concerning the breach are not considered relevant for the purposes of this decision.  The injuries received by him from his ex-wife do not appear to have contributed to any extent to his current ailments. 

A Fall [in] December 2017

The tribunal has been provided with documents concerning injuries allegedly received as a consequence of [an accident] at [a named] Detention Centre [in] December 2017.  These need to be explained. 

There are several letters from [Health Service 1] date 30 July 2019 and 23 September 2019, addressed to the medical officer at the Immigration Centre.  The first letter outlined that the applicant had reported injuring himself as a result of a fall [in] December 2017, after [an accident], stating:

He had for some period been wheelchair-bound due to severe pain in his back and left leg.

There were corroborative MRI findings showing high grade central canal stenosis with nerve impairment of the nerve roots.  The letter confirms he had undergone surgery to address this and was walking independently.  It indicated he had received physio treatment including strength training in August 2018.  He had undergone strength training in a rehabilitation hospital. 

The particular physiotherapist, [Physiotherapist A], had again seen him in April of 2019.  He reported to her his pain symptoms were worsening.  It appears he was provided with a further strengthening program to complete on his own.  It was recommended he have ongoing physio until a surgery date was confirmed.  The tribunal notes that this was taking place prior to him exhausting his options to appeal the partner visa decision.

The second letter of 23 September 2019 outlined he had received a corticosteroid injection which had been initially helpful but a few weeks later lost effectiveness.  He was referred to a pain specialist.  He reported that his lumbar range of movement was limited by pain in all directions.  He was provided with exercises and strengthening programs.  [Physiotherapist A] recommended ongoing physiotherapy to maintain mobility and manage his pain.  

There was also a letter from a consultant surgeon from [Hospital 1].  His name is [Specialist A].  The letter is dated 13 August 2019.  The letter confirmed that the applicant had been seen by [Specialist A] on 12 August 2019 regarding lumbar canal stenosis with a history of disc prolapse.  He indicated he had undergone a microdiscectomy in Fiji in 2003, and a laminectomy and discectomy in July 2018 at [Hospital 1].  He had presented with what is called cauda equina syndrome.

The tribunal notes that this condition occurs when the bundle of nerves found below the end of the spinal cord, known as the cauda equina, is damaged.  The signs and the symptoms include lower back pain, pain radiating down the leg, numbness around the anus, and a loss of bowel or bladder control.

The letter indicated that the week before 12 August 2019 he had undergone an epidural injection and had felt worse.  He had indicated pain and numbness in his right foot.  He was able to walk on his heels but struggled to walk on his toes.  The letter recommended he be seen in three months from August 2019, and that he would be referred to [Hospital 2] for input.

The tribunal has noted at page 2 of the Department file what appears to be a case note by a primary health nurse named [name], dated 22 October 2019.  The heading upon the typed case note referred to the applicant being under the care of [Specialist A], and that he was under a [team] at [Hospital 2].  The document indicated that a call was made to [Hospital 1], advising that [Hospital 2] had not as yet received a referral that had been typed on 13 August 2019.  The note indicated that the next [appointment] at the [Hospital 2] is scheduled for June 2020.  That was the earliest appointment available.

The tribunal has sighted a form 1507, being evidence of intended medical treatment, signed by a [named doctor] of the immigration detention centre [in] October 2019.  This indicated his treating medical practitioner was [Specialist A].  The nominated medical condition requiring treatment was lumbar spinal stenosis, and radiculopathy.  The form indicated that the applicant had spinal surgery in 2018, and as at [that date in] October 2019 he is awaiting further review by a pain specialist to manage chronic lower back pain.  It indicated that the treatment would be provided at the [Hospital 2].

The application for the visa indicated that the approximate dates he would be under medical care in Australia was from [December ]2019 to [June] 2020.  The tribunal has also sighted a statutory declaration by the visa applicant dated 9 September 2016, which was declared in Melbourne.  This provides some background, perhaps not apparent from other materials, and has been considered.

Submissions from the Representative of 30 January 2020

On 30 January 2020 the tribunal received written submissions from the representative to which were attached several of the documents I have just identified.  Those submissions have been carefully considered.

What Does the Tribunal Need to Consider?

The tribunal must determine if the intended further stay is for medical or related purposes.  Clause 602.211 requires that the visa applicant seek to visit Australia, or in the applicant’s case remain in Australia, temporarily for the purposes of medical treatment or for related purposes.  The tribunal is comfortably satisfied upon all of the medical evidence and information provided that the intended further stay is for medical purposes and purposes related.

He seeks the treatment to satisfactorily resolve his medical issues.  It should be noted that the duration of such treatment is not presently clear from the materials now before the tribunal.  Notwithstanding given the above findings, the tribunal finds that the requirements in clause 602.211 are met.

The Evidence Concerning Fitness to Depart Australia

Early in the hearing the tribunal address this issue with the applicant, as to unfitness to depart.  The requirements are conjunctive.  They require that the applicant is in Australia.  Clearly this is satisfied.  He must have turned 50.  At the time of the hearing, he was turning [age, under 50] [in] November 2020, so clearly this requirement is not met.  It requires that he apply for a permanent visa in Australia and appears to have met all of the criteria for that visa, other than the health criteria, but has been refused the visa.  On the basis of the known administrative review and litigation background discussed above, this requirement is not met. 

It is also required that he be medically unfit to depart Australia due to a permanent or deteriorating disease or condition, evidenced in writing by a medical officer of the Commonwealth.  There is no evidence from a medical officer of the Commonwealth before the tribunal.  There is no suggestion that any of the other alternative sub-criteria are relevant.  Given these findings, the requirements of clause 602.212(6) are not met. 

The tribunal finds he is fit to depart Australia.  As such, the provisions of clause 602.215 remain alive for consideration in the applicant’s case concerning his genuine intention to stay temporarily in Australia for the purpose for which the visa is granted.  To consider this fully, the tribunal must turn to the evidence of the applicant, in conjunction with all of the other submitted documentary evidence.

Evidence of the Applicant

He is a Fijian national, aged [age].  His parents are deceased.  He attended university in Fiji for two years to qualify as [an occupation 1].  He arrived into Australia [in] September 2012.  In that same year he had divorced his first wife.  He married her in Fiji in [year].  They separated in Fiji in 2010.  There were two children from that relationship, [years of birth specified].  He was not able to advise the tribunal as to their current location, nor the location of his first wife.  He had heard they possibly had travelled to [Country 1].  He has not had contact with them since 2012.

The tribunal is satisfied that his children do not present as any incentive for him to return to his home country of Fiji at the moment or in the reasonably foreseeable future.

He met his second wife in Fiji.  She is an Australian citizen but also a citizen of [another country].  He separated from her in 2015 whilst they were living in Australia.  He outlined the circumstances on which his second wife had obtained a violence intervention order in 2015, seeking to be protected against him.  He later breached the intervention order.  On being charged he pleaded guilty to that.  He was subsequently sentenced to imprisonment for three months before a [State 1] court.

He outlined the circumstances when he had sought review of the eventually unsuccessful application for the 801 partner visa before the tribunal.  He was not represented before the tribunal.  At that time of hearing he was in detention.  He briefly outlined the circumstances of the review, the appeal to the Federal Circuit Court and the Federal Court, and the unsuccessful application for special leave to the High Court.  His sister helped pay for legal services by [local] lawyers.  Those lawyers were fully paid.

The tribunal put to him that the efforts taken by seeking tribunal review, to appeal to two courts in the Federal hierarchy, and then to go on to seek special leave to the High Court, may suggest a level of desperation in seeking to remain in Australia.  He acknowledged that there was a degree of desperation.  However, by September of 2019 he had acknowledged the reality of his situation and had even signed an official document acknowledging he would return to Fiji.  He described this document as being a deportation letter.

He acknowledged that as at the time of tribunal hearing he had no money, but he did have potential access to funds, however, through his sister who lives in Sydney.  She is an Australian citizen, she works in [a named sector] and is married. 

The tribunal inquired as to what contacts he retains in Fiji.  He responded that he has a brother, but he last had contact with that brother several years previously in 2013.  When asked about why this is so, he indicated that his second wife had intervened or interfered in their relationship, and this resulted in a situation in which communication between the brothers had ceased.  The sister in Sydney does have contact with that brother but the brother no longer wishes to speak to the applicant.

He acknowledged that on his father’s side there are some family members remaining in Fiji but he described them as being a small circle with whom he has contact about every six months or so.  He was last in Fiji in April 2016 for three weeks but he has not returned since. 

He confirmed that he had a spinal procedure in Fiji in 2003 following significant back pain arising from a [specified] injury.  A surgeon had travelled from America to do that procedure.  The tribunal is aware that this appears to be a relatively common occurrence now in Fiji involving medical specialists from the United States, India and possibly other countries.  [Details deleted.]  It involved (indistinct) a disc in his back to provide pain relief.  Surgery went well as he was able to recover sufficiently to engage in [employment].  It appears all went well for many years until the purported recent injury.

A further outline of circumstances that occurred [in] September 2017 where he [suffered an accident] in detention, he claims that the cleaners had not put up a sign warning of potential dangers.  He could not stand immediately after [the accident] and was in significant pain.  He reported the injury the same day to staff.  He was given medication by detention centre nursing staff, and it seems that [in] January 2018 he was transferred to the [another] Detention Centre to assist his treatment.

His CT scan confirmed that there was an injury to his spinal discs.  He claims that from [January] 2018 to July 2018 he was confined to a wheelchair.  On 6 July 2018 he underwent the surgery I have mentioned by [Specialist A].  He was released [in] July 2018, and underwent three weeks of rehabilitation at [another hospital].  During August 2018 he received an injection directly into his spine to assist with pain. 

As at the date of hearing he claimed that he had a confirmed appointment to see [a team] at [Hospital 2] on 24 February 2020.  He believed that it was likely that his pain medication would be changed following that appointment. 

The tribunal focused upon the situation at the time of hearing and the projected future treatment, to confirm that he would be attending [Health Service 1] frequently, at least once a week.  He had seen [Physiotherapist A] the day before the hearing.  Part of his therapy involved receiving what is called TENS treatment.  The tribunal is aware that this involves placing electrodes upon the affected part of the body to stimulate healing through electrical current.

He told the tribunal he believed he would be seeing [Specialist A] in mid-2020 to discuss surgery options.  The tribunal notes that he will now be seeing [Specialist A] on or about 7 September.  The tribunal expressed a view that the five-month wait seemed lengthy considering the pain he was experiencing.  He responded that inquiries had been made to possibly seeing him earlier, however, he was a busy man.

The tribunal inquired as to what he believed would be the focus of that consultation.  He responded, “It would be to arrange surgery for fusing of discs.”  He claimed that if he does not get surgery he eventually may need a wheelchair.  The tribunal has noted that at the time of the hearing, even to the point of decision, that there is no information from [Specialist A] confirming that is what will be the focus of the future appointment and that surgery is essential.  It may well be required, however, this may not be known until September 2020.

The tribunal inquired as to who would be footing the fees for the consultations with [Specialist A] and any subsequent surgeon.  He responded it would be likely him, not the government, because if the visa were to be granted he would be within the community and not a detainee. 

The tribunal sought his responses as to why it should accept that he has a genuine intention to remain temporarily in Australia in the event the visa were granted.  He responded that once he is free from pain and can go back to his home country, he would be able to earn a living as he would be fitter.  It would be hard to secure employment in Fiji, and he did not know how he would be able to survive in Fiji but his sister would be able to provide him with some financial help.  He confirmed that he owned no significant asset and no ownership of any property in Australia, Fiji or anywhere else.

He claimed that his life would be very hard if he had to go back to Fiji as he would likely have to live on the streets.  He again confirmed that if his pain were lessened he would be able to do a little work.  He confirmed he has a few friends in Melbourne and Sydney, and that he has a current partner who lives in Melbourne.  Her name is [name].  He had last seen her in June of 2017.  The tribunal notes that that is nearly three years ago.  He was living with her before he was detained.  She calls him once or twice a week.

The tribunal put information in a general sense that it had sourced from open internet sources.  The links to those sources were provided to the representative.  The import of the various source data was that specialist surgeons do attend Fiji to perform spinal surgery, as such was evident from the fact that the applicant obtained surgery in 2003. 

The applicant acknowledged this was correct but that a public patient would have to pay upfront.  He would not be able to afford to be a private patient, and he believed that he would not be able to obtain the surgery in the public hospital because it is very expensive.  In the public system he believed it would be a three to four year waiting list.  He acknowledged, however, that he had no evidence for suggesting such a weight, as he had not as yet made inquiries, himself. 

The tribunal notes that the applicant was able to secure the surgery from the visiting US surgeon in 2003, and that had a successful outcome.  The tribunal raised with him that there did not appear to be significant incentives for him to return to Fiji, to which he responded that if he became pain-free he can go back to his home country. 

The tribunal noted that he has no knowledge as to the current location of his first ex-wife or the children.  His most recent understanding was that they may be in [Country 1], and he has no significant family in Fiji.  His parents are deceased.  He has no job to go back to after so many years of living in Australia.  He confirmed that he had no fear of suffering physical or emotional harm by anybody back in Fiji.

He acknowledged that there were no incentives for him to return, but the reality was that if he had no visa in Australia he would have to go home in any event.  He told the tribunal that it would be better off for him if he could stay in Australia.  He confirmed that he had been cleared of disease in Australia.

The tribunal invited the representative to provide oral submissions and they were directed towards the incentives to remain as against the incentives to return to Fiji, and whether the applicant would potentially pursue other visa streams in Australia upon expiry of the medical visa if granted.  It was put to the tribunal there was a general low standard of medical services in Fiji and the expense of the private system, and the clear superiority and availability of treatment in Australia.  It was acknowledged that the visa applicant may or may not wish to seek another visa to remain in Australia.  It is acknowledged that the costs and fees to date had been born through the Department.

Following the hearing the tribunal issued a letter to the applicant, pursuant to section 356AA of the Act, and that was a request for further information.  I do not need to go to that in detail but the information that the tribunal was keen to see related to the extent to which the treatment and surgery could be funded by others or by the applicant and others in Australia, and the access to both medical services and surgery in Fiji to address the medical issue that he has, and the incentives for him to return to Fiji.  It sought a response by 13 February 2020.

On 12 February further documents and information was received.  They were sent by the representative.  The key submissions, and I do not intend to read them out verbatim, were as follows relating to surgery fees and documentation for spinal surgery.  There was reference made to [the Applicant] having obtained health insurance through [Agency 1].  Having looked at the document concerned, he had only recently obtained an insurance policy with [Agency 1]. 

The tribunal raised as to whether [Agency 1] would foot the bill, so to speak, for a condition that is clearly pre-existing at the time of obtaining the coverage.  [Representative A], it is fair to say, was not in a position to provide clear submissions on that.  The tribunal spoke to the applicant, who said that he had been advised that subject to an excess amount of $500 he believed that he may be covered or would be covered.  The tribunal has a great deal of difficulty in accepting that that would be the case, particularly considering the significant condition that he has and the likely significant expense of having the surgery and subsequent rehabilitation.

The next item concerned the superannuation that he has accumulated, amounting to about $10,000, through his work in Australia.  The applicant believed that there were two ways essentially that he could access that.  One was if he was deported he believes that he would be able to access the money.  And another is a provision concerning if he has a medical condition, essentially emergency access to his superannuation. 

The tribunal is prepared to accept that however unlikely it seems he may be able to access that amount of money.  There were other submissions in relation to the capacity of the applicant’s sister and her husband to provide assistance, including utilising equity in their home to obtain a further loan which would be used to pay for the applicant’s medical expenses.  There is some evidence that they do have an amount of equity, amounting to about $275,000, in their home which may be used for that.

Having considered all of that evidence, the tribunal is prepared or does accept that the applicant will be able to fund the pain therapy that he is now receiving, the ongoing consultation or consultations with [Specialist A], and surgery in Australia.  It accepts that.

There were further submissions in relation to the Fijian medical system and the availability of treatment within the public and the private sectors, and that has been considered by the tribunal.  The position that the tribunal takes is that it cannot discount the possibility that the applicant could obtain treatment and surgery for the particular condition in Fiji.  That would likely involve treatment from visiting specialists from the United States, India or elsewhere. 

But it must be said that the benefits of obtaining that treatment in Australia are significantly greater than having to return to Fiji, and the tribunal does accept that initially at least he would not be able to access the private sector, to jump ahead of the list so to speak.  There are clear benefits for him remaining in Australia to obtain the treatment he needs, and he does need that treatment, the tribunal accepts that.

The next aspect was the genuine temporary entrant criterion.  I will read out those submissions.  The submissions were that the applicant had instructed that after receiving medical treatment in Australia he would be in a better position to start work back in Fiji as [an occupation 1].  It would be a motivation towards life for him if he could gain better health and start working back in his industry.  It was also submitted that if his medical condition was fixed he would be better off going to Fiji than staying in Australia, as he could get a job as [an occupation 1] in Fiji and perhaps start his own [occupation 1] workshop in Fiji.

It was also submitted he had never been unlawful whilst in the community in Australia or any other country.  When his bridging visa E was cancelled he became unlawful, and he was in gaol and thereafter he was in the detention centre.  It is fair to say that he has never been unlawful in the community, however, that does not equate with him being in compliance with Australia’s visa requirements, and I will say more about that in a minute.

It was also submitted that there are no viable options for the applicant to gain further residency in Australia, either temporarily or permanently, except for seeking a partner visa.  He submitted that he would not meet the criteria for the grant of a partner visa as he does not have a partner in Australia with whom he satisfies the required 12 month de facto relationship requirements, unless there is an Australian who marries him.

Based upon his own evidence, he has had very little contact with this lady in [State 1] for three years, certainly since he has been detained.  It would appear to the tribunal he would have great difficulty satisfying the partner requirements.  It is confirmed that the applicant had indicated to the tribunal that he may have less incentive to return to Fiji and may apply for another visa to extend residence here in Australia. 

The submissions indicate that this comment that he made during the hearing was out of respect for Australia and where he seeks to get medical treatment, rather than his intention to live in Australia permanently.  It was submitted that in the applicant’s opinion it may have been rude for him to say that he did not want to live in Australia by exploring other visa options upon the expiry of the medical treatment visa, and this could be due to his cultural upbringing.  So they were the submissions.  They have been taken into consideration.

Legal Considerations for Medical Treatment

Clause 602.212 requires the applicant to meet one of seven alternative sub-criteria in clause 602.212(2) to (8).  These relate to the basis for which the stay in Australia is required.  Relevantly in this matter, clause 602.212(2) relates to the applicant seeking to obtain medical treatment, other than for the purposes of surrogate motherhood.  Broadly speaking, it requires that the arrangements for the treatment have been concluded. 

The question is:  has this been satisfied?  There is a letter from [Hospital 1] dated 6 February 2020 stating that an appointment has been made to see [Specialist A] on 7 September 2020.  The tribunal accepts that all possible arrangements are now in place to manage the pain, which includes the physiotherapy and the pain medication.  But there is no conclusive or hard evidence at this stage that surgery is definitely required.  And that will not be known for some time, until he sees [Specialist A] in six months.  It may well be the situation that he does need that significant surgery, but the tribunal is not satisfied that the arrangements for the treatment have now been concluded.

The other requirements relate to organ transplant; clearly that is not relevant to this particular matter.  A further requirement is the applicant is free of a disease or a condition that may be of threat to the public health or a danger to the Australian community.  There is no evidence or information of the applicant having a disease or such condition.  His evidence is that he has no disease or condition.  The tribunal is prepared to accept that is so.

The arrangements for payments of all costs and expenses associated with the treatment and the stay must be concluded.  So that brings into question what are the arrangements.  Should the surgery take place, it appears that the primary burden will be on his sister and her husband.  This may necessitate putting up equity in their own family home as security.  But having weighed all the matters, the tribunal accepts that broadly speaking the arrangements have been concluded, and it is satisfied on that particular point.

The next requirement is payments of costs will not be a charge on the government or public authority in Australia.  Well, there is evidence that the relevant government authority has approved payment.  The tribunal is satisfied that costs for treatments whilst in detention were born by the Federal government, that those treatments to date have been approved.  Should he be granted a visa, it is likely the government will no longer foot those bills.  The tribunal is satisfied as to this requirement.  There is no suggestion that any of the other alternative sub-criteria are relevant.

Given the above findings, the requirements in clause 602.212 are not met in full.  The next question is will the visa grant result in no disadvantage.  Clause 602.214 requires that no Australian citizen or permanent resident will be disadvantaged in obtaining medical treatment or consultation if the visa was granted.  This requirement would not apply if the applicant was medically unfit to depart Australia, as described in clause 602.212(6).  He is fit to depart, however.  The tribunal is satisfied that clause 602.214 is met.

The main criteria is this.  Clause 602.215 requires that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa was granted.  The tribunal must have regard to whether the applicant has complied substantially with the provisions of the last held substantive visa or any subsequent bridging visa.  The breaches of the intervention order occurred on 16 March 2017, at the time he was then subject to a bridging visa E.  He pleaded guilty to those offences and he was imprisoned in [State 1] for three months.  The tribunal notes that the general conditions for bridging visa E include 8303:

A visa holder must not become involved with activities disruptive to or violence or threaten harm to the Australian community or group within the Australian community.

It is perhaps arguable by breaching the intervention order that that condition has not been fully complied with, however, the tribunal gives the applicant the benefit of any doubt on that.  But condition 8564 is that he must not engage in any criminal conduct.  A breach of an intervention order, such that would result in imprisonment for three months, is in itself criminal conduct.  He has a criminal conviction in Australia at the moment for that.  He was in prison.  So it would seem that he has not complied substantially with a condition of a subsequent bridging visa.  That must be given due regard and due weight.

This requirement would not apply if the applicant was medically unfit to depart Australia but, as I have said, the tribunal considers he is fit to depart.  The tribunal must consider whether he genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.  Having regard to the considerations set out in clause 602.215(1)(a) to (c). 

Based upon assessment and consideration of all of the evidence, including the documents and the evidence of the applicant, the following are clear to the tribunal.  The applicant is a Fijian national of [age range].  Australia has been his home since September 2012, which is going on eight years.  He has extensive experience as [an occupation 1].  He trained and gained experience in Fiji.  He gained experience in Australia.  He told the tribunal that he is concerned that he would have to live on the streets if he were to return, initially at least.  The tribunal has some difficulty in accepting that submission, bearing in mind his extensive experience, and having worked in Fiji in his particular calling. 

The tribunal is satisfied that he has no idea where his two children are located.  He has not had any contact with them for nearly eight years.  They would not offer any incentive for him to return to Fiji.  He has no assets in Fiji, including any property ownership.  He has no significant assets or moneys in Australia, other than what he can access through potentially his superannuation and through his sister and her husband.  The only family connections are on his father’s side and he communicates with them once every six months or so.  There are no close associates in Fiji, evident from all the evidence,  that may support him on his return home.

The tribunal acknowledges he was legally entitled to follow through on every legal avenue to seek review and appeal decisions upon the 820.801 visa refusal.  He did that.  But what this indicates is that there has been a significant degree of desperation on the applicant’s behalf to secure his onshore presence in Australia.  He told the tribunal as much, himself.  He acknowledged there was (indistinct) by way of incentive for him to return.  He has no medical insurance in Fiji.  He claimed that he would need to be a public patient if he returned, and this would significantly impact upon him gaining the treatment he needs, including possible surgery.

The other side of that coin is that he has admitted that he will have access to funds here in Australia if the visa were to be granted.  The tribunal has listened to the submissions of the representative today upon that, and is not satisfied that he would not have access to funds from the same sources if he were to return back to Fiji.  The tribunal considers that he would be able to access pain control services and eventually the same surgery that he seeks, in his home country. 

It may be of the same quality as might be anticipated in Australia but this is really conjecture.  But, as I have said, the tribunal does accept that generally speaking the quality of health services across the board would be expected to be superior in Australia.  That is not an issue.

He has much in the way of incentive to stay in Australia.  He has his sister here, living in Sydney, and her husband.  He has ingratiated himself into the Australian community.  It has become clear from his actions that he is determined to follow legal avenues to remain onshore.  He says he has a relationship with a woman in [State 1].  He calls her his partner.  He is also a long way through his treatment regime for his condition.  It would be expected he would want to follow through with that treatment with the same sort of practitioners and specialists as he has.  That is an incentive for him to remain in Australia.

The tribunal has to do a balancing exercise and weigh up all of these considerations and incentives for him to return to his home country at expiry of the visa or before the expiry of the visa, and to remain.  Having assessed everything individually and cumulatively, the tribunal finds that the clear weight of all of the evidence is that there are many more incentives for him to stay in Australia, that he would not depart following expiry of a visa if granted.

The tribunal is not satisfied that the applicant genuinely intends to stay only temporarily for the purpose of the visa, if granted.  Given those findings, clause 602.215 is not met.  Based upon the findings, the applicant does not meet the requirements for the grant of a visa, and the decision under review is affirmed.  The decision is that the tribunal affirms the decision not to grant the applicant medical treatment visitor (class UB) visa, and that is the decision.

Now, [Representative A], are you still with me?

[REPRESENTATIVE A]:  Yes, Member.

MEMBER:  All right.  Is the decision clear to you?

[REPRESENTATIVE A]:  Yes, Member.

MEMBER:  I’m not saying that you agree with it.  I’m just saying were the reasons able to be heard by you?

[REPRESENTATIVE A]:  Yes, I did.

MEMBER:  Thank you.  [The Applicant], are you there also?

[THE APPLICANT]:  Yes.  Yes, please.

MEMBER:  Yes.  Do you understand what I’ve decided?

[THE APPLICANT]:  Yes.

MEMBER:  And were the reasons clear to you in that you could hear them?

[THE APPLICANT]:  Yes, sir.

MEMBER:  All right.  Well, your representative can write to the tribunal and ask for a transcript of those reasons.

[THE APPLICANT]:  Okay, sir.

MEMBER:  And [Representative A] will no doubt speak to you about the possibilities of appealing my decision to the Federal Court or the Federal Circuit Court.

[THE APPLICANT]:  Because, excuse me, sir, I don’t think so that I go any further because it’s very hard to get the money and for all that if I have to go back to my country, it’s very hard for me.  If I get some moneys and, like, see the medical treatment here before I go, that’s good.

MEMBER:  All right.  [Representative A], there is another aspect that I need to raise with you, and that is referral for ministerial intervention.  Are you familiar with that?

[REPRESENTATIVE A]:  Yes.

MEMBER:  The tribunal’s directions from its President say that:

When a member considers that a case should be brought to the Minister’s attention, the member may refer the case to the Department, where the facts or circumstances warrant further investigation.

[REPRESENTATIVE A]:  Yes.

MEMBER:  Now, I’m satisfied that your client does need the surgery for the condition, and I am satisfied that that surgery and that treatment requires a specialist degree of knowledge and experience.  So what I intend doing is refer this matter to the Department for consideration of ministerial intervention.

[REPRESENTATIVE A]:  Thank you, Member.  I think that will be very helpful.

MEMBER:  Obviously that’s a discretion for the Minister.  I can’t say to you or your client the success or likely success of that, but I am satisfied that there are good reasons to refer it for consideration.

[REPRESENTATIVE A]:  Thank you for considering this matter.

MEMBER:  Okay.  Is there anything further either of you would like to say?

[REPRESENTATIVE A]:  Not really, but, yes, if you can refer the matter to the Minister for ministerial intervention, that would be a help, I think, in this case.

MEMBER:  All right.  Well, what I will do is I will ask for the tribunal to obtain the transcript so that the file or the package from the hearing and all the other documents are referred so that the Department can look at it.

[REPRESENTATIVE A]:  Thank you.  Thank you, Member.

MEMBER:  And of course your client has the legal option open to him to appeal this decision.

[REPRESENTATIVE A]:  Yes, Member, thank you.

MEMBER:  All right.  Well, thank you for your time.

[REPRESENTATIVE A]:  Thanks very much for considering the submissions and looking at the whole case.  Thank you very much for your time as well.

MEMBER:  Thank you very much.

[THE APPLICANT]:  Thank you, sir.

ASSOCIATE:  This oral decision concludes at 2.46 pm.

END OF ORAL DECISION  [2.46 pm]

Michael Judd
Member