2016467 (Migration)

[2022] AATA 2609

2016467 (Migration) [2022] AATA 2609 (7 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2016467

MEMBER:Mara Moustafine

DATE:7 July 2022

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 07 July 2022 at 2:55pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) – Subclass (Medical Treatment) – genuine temporary stay for purpose of visa – visa history – long residence and previous visa refusals, and unsuccessful reviews, appeals and application for ministerial intervention – not unfit to depart – proposed period of treatment now passed – no current evidence of medical condition or treatment provided – no explanation of why treatment could not be received in home country – intention to comply with conditions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Home Affairs on 23 October 2020 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 is a [Age]-year-old national of India. He first arrived in Australia [in] April 2008 as the holder of a Student (subclass 573) visa due to cease 15 March 2011. Apart from two short round trip departures, the applicant has remained in Australia since that time. His application for a Skilled Graduate (subclass 485) visa which was refused on 12 October 2012, a decision affirmed by the Tribunal on 26 June 2013 and upheld in three judicial reviews, the last on 18 August 2014. He was unsuccessful in his application for Ministerial Intervention on 30 March 2016. On 10 May 2016 the applicant applied for a Permanent Protection (subclass 866) visa which was refused on 25 July 2016, a decision affirmed by the Tribunal on 20 June 2017 and upheld in three judicial reviews, the last [in] September 2020.

3. The applicant applied for the Medical Treatment (subclass 602) visa currently under review on 12 October 2020. 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).

4. With his application the applicant provided Form 1507 (Evidence of intended medical treatment) signed by [Dr A] on 18 September 2020 which stated that the medical condition requiring treatment was Severe Adjustment Disorder with anxious and depressed mood and the treatment was GP counselling, Psychologist referral, Temazepam and Amitriptyline. In Form 48 ME, the applicant stated he would be under medical care from 12 October 2020 to 18 September 2021 and would bear all medical expenses. The applicant also provided a copy of the biodata page of his Indian passport.

5. The delegate refused to grant the applicant the visa because he was not satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.

6. On 10 November 2020 the applicant lodged an application for review of the delegates decision. A copy of the delegates decision was provided to the Tribunal. The applicant is not represented in relation to this review.

7. The applicant appeared before the Tribunal by teleconference on 7 July 2022 to give evidence and present arguments. The applicant chose to speak in English throughout the hearing. He did not seek assistance from the interpreter in the Hindi and English languages arranged by the Tribunal, who was present at the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issue in this case is whether the applicant meets the requirements in cl.602.215, that is, that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

10. Relevantly to this matter cl. 602.215 provides:

    (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.

    Is the applicant unfit to depart Australia?

11. Clause 602.212, as extracted in the attachment to this decision, requires the applicant to meet one of the seven 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(6) relates to an applicant being medically unfit to depart Australia. It 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.

12. The applicant was born on [Date], making him [Age] years old. As set out in the delegate’s decision, a copy of which he provided to the Tribunal with his application, his application for a Protection visa was unsuccessful. 

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

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

14. 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).

15. As set out above the applicant does not meet the requirements in cl. 602.212(6).

16. With regard to the requirement that the applicant must have a genuine intention to stay temporarily for the purpose of medical treatment or related matters, the only medical evidence he provided is Form 1507 signed by [Dr A] on 18 September 2020 which stated that the applicant required treatment for Severe Adjustment Disorder with anxious and depressed mood and the treatment was GP counselling, Psychologist referral, Temazepam and Amitriptyline. In Form 48 ME, the applicant stated he would be under medical care from 12 October 2020 to 18 September 2021 and would bear all medical expenses.

17. No current evidence was provided to the Tribunal about the status of the applicant’s medical condition, whether his treatment had been completed or was ongoing and why he now had to remain in Australia. In discussion at the hearing the applicant claimed that he had treatment for four months and was still having counselling and taking medicine when required, although he could not name which one. he said he would return to India when his treatment was finished. Asked why he had not provided evidence of ongoing treatment as requested in his hearing invitation, the applicant said he could not understand what he was supposed to provide but could get a letter from his doctor if the Tribunal gave him a week. He offered no credible explanation as to why he could not receive counselling and medication in India. 

18. As discussed with the applicant in view of the above, the Tribunal has serious doubts that the applicant has a genuine intention to stay temporarily in Australia for the purpose of medical treatment or related matters.

19. The Tribunal’s concerns are exacerbated by the applicant’s migration history as outlined at paragraph 2 above. At the hearing the applicant confirmed that he has been in Australia since arriving here on a Student visa on 16 April 2008, apart from two short round trip departures; and has unsuccessfully applied for a Skilled Graduate visa and a permanent Protection visa, both of which he pursued unsuccessfully through merits and judicial review.

20. The Tribunal has considered whether the applicant intends to comply with the conditions to which the Subclass 602 visa would be subject, in particular condition 8201 (No studies) and 8503 (The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia). As the applicant gave evidence that he completed the studies for which he originally came to Australia, the Tribunal is satisfied that he will not seek to study again while in Australia in breach of condition 8201.

21. With regard to condition 8503, the Tribunal considers that the applicant has a strong motivation and intention to remain in Australia. This is evidenced by his application for a permanent Protection visa and his presence in Australia for over 14 years. In light of this, the Tribunal is not satisfied that if condition 8503 were placed on any visa, the applicant might not seek to obtain a waiver of such a condition.

22. As discussed with the applicant, considering the absence of evidence about his current medical treatment and his failure to depart at the end of the period originally sought for medical treatment, the extensive period of time he has been in Australia and his previous unsuccessful application for a permanent Protection visa, the Tribunal is not satisfied that he has a genuine intention to stay temporarily in Australia for the purpose for which the visa is granted.

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

24. 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

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

    Mara Moustafine
    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).